Opinion
(Filed 11 September, 1929.)
CIVIL ACTION, before Moore, Special Judge at June Term, 1929, of PASQUOTANK.
W. L. Cohoon and Ehringhaus Hall for plaintiff.
Thompson Wilson for defendant.
Plaintiff alleged that on or about 1 April, 1912, he suffered the loss of his foot by reason of being struck and run over by a train owned and operated by the defendant. At the time of the injury plaintiff was a minor eight years and four months of age. The track of defendant crosses Culpepper Street within the corporate limits of Elizabeth City. At the time of the injury this was a much used and populous thoroughfare.
Plaintiff offered evidence tending to show that while he and other colored boys were playing in Culpepper Street he attempted to run across the track of defendant, stumbled and fell across the track, and was run over by box cars pushed by an engine. The evidence further tended to show that the right of way of defendant at the intersection was obstructed by weeds and a building; that no signal was given by the engine as it approached the crossing, and that there was no lookout on the box car.
The evidence of defendant tended to show that the plaintiff was attempting to board a moving train, missed his footing, and fell under the train.
Issues of negligence, contributory negligence and damages were submitted to the jury and answered in favor of plaintiff. The issue of damages was answered in the sum of $2,000.
From judgment on the verdict the defendant appealed.
There was evidence of negligence and strong evidence of contributory negligence. However, the material conflict in the testimony created issues of fact. It was therefore necessary to submit the case to the jury. The verdict establishes facts imposing liability, and no error of law appears in the record. Hoggard v. R. R., 194 N.C. 256, 139 S.E. 372; Brown v. R. R., 195 N.C. 699, 140 S.E. 622.
Affirmed.