#### GEORGE LATHAM STEWART, Infant, by His Next Friend, W. A. STEWART, v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 17 February, 1932.)

Negligence A d, B c: Master and Servant Da — Anticipation of injury, proximate cause, and independent contractor held properly submitted to jury.

Where in an action against a railroad company there is evidence that the plaintiff was hit in the eye by a loose roelr thrown by the wheels of a truck while crossing the right of way of the defendant railroad company at a public crossing, that the loose rock at the crossing had been put there by an independent contractor of the defendant railroad company, a charge presenting for the determination of the jury the questions of intervening negligence and whether the injury could have been anticipated and correctly giving the law arising upon the liability of the defendant for the acts of the independent contractor who had completed the work before the occurrence of the injury, is *Held not*to be erroneous under the facts of this case.

Appeal by defendant from *Devin, J.,*and a jury, at February Term, 1931, of CeaveN.

No error,

This is an action for actionable negligence, brought by plaintiff against defendant for damages.

The plaintiff alleged in his complaint that the defendant, Atlantic Coast Line Railroad Company, pursuant to contract evidenced by a consent judgment was under the duty of paving part of Queen Street in the city of New Bern, occupied by the defendant’s tracks. It was required to pave the space between the rail and the track in accordance with the terms of said consent judgment; and that the defendant, in pursuance of said work and shortly before the injury complained of, had placed or dumped along its tracks on said street a quantity of loose, crushed stone without any binding material or tarvia, as referred to in said contract and judgment, and that said material was allowed to remain there for some length of time, and that this material, loose, crushed rock there was of such character that when the street was opened and automobiles passed-over it they had the effect of throwing the rocks and crushed stone; and alleges that on or about the fifth day of September the plaintiff, ivhile standing near the sidewalk on the street on which he lived, was struck in the eye by a piece of crushed stone thrown by a motor vehicle in passing over said loose, crushed stone on defendant’s track which the defendant had thereupon placed; and alleges that his injury was due to the negligence of the defendant in placing and allowing such material to remain upon its tracks upon a *289street used by the public and by vehicles, and asks to recover damages therefor in the sum of twenty-five thousand dollars.

The defendant filed an answer in which it denied that it was guilty of any negligence in the matter; that pursuant to the judgment referred to by the plaintiff it entered into a contract with an independent contractor to do the paving in accordance with the requirements of such judgment, and that this paving was done by said independent contractor and was entirely completed long before the injury complained of by the plaintiff; that if there was negligence in the manner in which it was allegedly done, that it is not attributable to the negligence of this defendant, but to the negligence of the independent contractor whom the defendant had employed to do the work, and denies that there was any loose stone or crushed stone at that time which could have been foreseen would have been thrown up by the wheel of a motor vehicle in passing over it, and denies any negligence on its part was in law or fact the proximate cause of the injury complained of by the plaintiff.

The issues submitted to the jury and their answers thereto, were as follows:

“1. Was the plaintiff, George Latham Stewart, injured by the negligence of the defendant, as alleged in the complaint? Answer: Yes.

2. What damage, if any, is the plaintiff entitled to recover of the defendant? Answer: $2,500 and costs of this action.”

The court below rendered judgment on the verdict. The defendant made numerous exceptions and assignments of error and appealed to the Supreme Court. The material facts and assignments of error will be considered in the opinion.

*H. P. Whitehurst, Abernathy & Abernathy ancl Ward & Ward for plaintiff.*

*W. B. 'R. Guión for defendant.*

Pee CueiaM.

At the close of plaintiff’s evidence and at the close of all the evidence, defendant made motions for judgment as in case of nonsuit. C. S., 567. The court below overruled the motions and in this we think there is no error.

The evidence on the part of plaintiff sustained his contentions and that on the part of defendant sustained its contentions. The jury found for the plaintiff.

The court below in analyzing the matter in the charge, said: “The defendant contends that the work was all completed before this injury complained of; that if there was any negligence that it was that of the independent contractor, and that the contractor did this in his own *290way, if be did do so, and tbat any negligence on tbe part of tbe defendant or anybody there was not tbe proximate cause of tbe injury to tbe boy; tbat it could not have been foreseen; tbat it was an accident, an accident happening from unknown causes or from an unforeseen result of a known cause. Plaintiff contends tbat they were negligent in creating those conditions from which in tbe ordinary use of tbe street by automobiles it could have been anticipated it would do tbe very thing tbat happened in this place. . . . So it is a question for you.”

Tbe court below defined accurately negligence, proximate cause, independent contractor and damage.

*W.*A. Stewart, for plaintiff, testified in part: “I was sitting up in bed at the window, looking out of tbe window when tbe truck came out of Bragg’s Alley, made a turn with tbe wheels like tbat, and when she did, tbe rocks flew up and in tbe meantime tbe boy was struck by a rock and tbe rocks flew over tbe porch. Tbe boy was standing right in tbe door of tbe bouse. I could see him at tbat time. I could see tbe rocks fly up. Some were fine rocks. They were of all kinds. When tbe boy cried out, I beard a rock strike tbe porch. He screamed. His mother was standing there in tbe passage. She ran and grabbed him. She was standing in tbe passage. I didn’t see bis eye until after be came from tbe doctor. It was then all tied up. It was bis right eye. He is now blind in tbe eye. He lost tbe sight of tbe eye.”

Tbe question of proximate cause was left to tbe jury. Tbe court below charged as follows: “If tbe jury should find tbat tbe injury to tbe plaintiff could not have been caused without tbe independent acts of tbe Oaks Farm truck, and tbat tbe plaintiff would not have been injured were it not for tbe truck turning into Queen Street in front of tbe bouse of tbe plaintiff, and tbat such act could not bare been reasonably anticipated by tbe defendant, then I charge you tbat tbe negligence of tbe defendant could not be considered to be tbe proximate cause of tbe injury and tbe jury should answer tbe first issue, No. Therefore, if there is a responsible, intervening cause by tbe person legally responsible for bis acts, in this case, tbe automobile truck, which cause could not in tbe natural and ordinary course of things be anticipated by tbe defendant so acting as to make negligence of defendant injurious to a third person, as in this case throwing rock from tbe roadbed of tbe defendant, then tbe person so intervening acts as a non-conductor and insulates tbe negligence of tbe defendant, thus making tbe negligence of tbe third person tbe proximate cause of tbe injury and freeing tbe defendant from liability because of tbe fact tbat bis negligence could not have caused .the injury without tbe intervening act of tbe third person, then I charge you tbat tbe negligence of tbe defendant could not have been considered *291the .proximate cause of the injury and you would answer the first issue, No. Now, gentlemen, applying these principles of law to the testimony, it becomes a question of fact for you to determine from the evidence whether you find that the Atlantic Coast Line Company was negligent and that its negligence was the proximate cause of the injury complained of by the plaintiff in this case.”

"We think the special instructions, as prayed for by the defendant, properly declined by the court below. The exceptions and assignments of error, as to the admission and exclusion of evidence, cannot he sustained. We think in the charge of the court below the law applicable to the facts was correctly stated. The contentions were given fairly and impartially for both plaintiff and defendant. On the record we can see no prejudicial or reversible error.

No error.