Opinion
(Filed 2 March, 1938.)
Carriers § 22 —
Nonsuit held proper in action against railroad company upon evidence showing that intestate was a trespasser upon a train and fell therefrom to his death, without evidence that his fall was caused by any wrongful and willful act of the railroad company or its employees.
APPEAL by plaintiff from Sink, J., at October-November Term, 1937, of SWAIN. Affirmed.
Edwards Leatherwood for plaintiff.
Jones, Ward Jones and W. T. Joyner for defendants.
This is an action to recover damages for the wrongful death of plaintiff's intestate.
At the close of the evidence for the plaintiff, the defendants moved that the action be dismissed by judgment as of nonsuit. The motion was allowed by the court.
From judgment dismissing the action, the plaintiff appealed to the Supreme Court, assigning error in the judgment.
This action was heard in this Court at Fall Term, 1937, on the appeal of the defendant Southern Railway Company from an order of the Superior Court of Swain County, denying its petition for the removal of the action from the Superior Court of Swain County to the United States District Court for the Western District of North Carolina for trial. The order was affirmed. See Edwards v. R. R., 212 N.C. 61.
At the trial of the action in the Superior Court of Swain County, all the evidence showed that at the time plaintiff's intestate fell from the defendant's train, he was riding on said train as a trespasser. There was no evidence tending to show that his fall from defendant's train was caused by any wrongful and willful act of the defendant Southern Railway Company, or of any of its employees. The judgment dismissing the action is affirmed. See Bailey v. R. R., 149 N.C. 169, 62 S.E. 883; Hayes v. R. R., 141 N.C. 195, 53 S.E. 847; Cook v. R. R., 128 N.C. 333, 38 S.E. 925.
Affirmed.