Chambers v. Winston-Salem South Bound Railroad

199 N.C. 682

• Court: Supreme Court of North Carolina
• Decided: November 5, 1930
• Status: Published

Opinion

Pee Cueiam.

The defendant, Winston-Salem South Bound Railroad Company, at the close- of plaintiff’s evidence, made a motion in the court below for judgment as in case of nonsuit. O. S., 567. The motion was allowed, and in this we can see no error.

The plaintiff alleges and contends that the injuries sustained by plaintiff’s intestate which directly caused the death which ensued, were due to and proximately caused by the concurrent negligence of the defendant Railroad Company and the defendant Richard Jones. The plaintiff further contends -that the evidence adduced at the trial of the cause, in support of his allegations and contentions, was sufficient to take the case to the jury. We cannot so hold.

We think this case is controlled by the principles laid down in Lineberry v. R. R., 187 N. C., at p. 794: “This violation of a town ordinance made the defendant guilty of negligence per se, but that negligence must be the proximate cause of the injury to young Lineberry. In the present case the testimony of the young lad, Lineberry, was that his companion, another young lad who was with him, pushed him under the moving train. This was the intervening, independent, sole proximate cause of the injury, for which the defendant cannot be held liable. The injury was not the natural or probable consequence of defendant’s negligence in exceeding the speed limit. Pushing the boy under the train was the proximate cause of the injury. It was an unfortunate and deplorable tragedy, but defendant is in no way responsible for the act of the Qualls boy.”

The judgment of the court below is

Affirmed.