#### FRAZIER v. WILKES.

(Filed April 28, 1903.)

NEGLIGENCE — Damages—Accidents—Bailroads—Personal Injuries.

No act or omission, though resulting in damage, can he deemed actionable negligence unless the one responsible could, by the exercise of ordinary care, under all the circumstances, have foreseen that it might result in damage to some one.

ActioN by A. H. Frazier against Jane R. Wilkes, heard by Judge Thomas J. Bhaw, at March Term, 1903, of the Superior Co-urt of Meoiclenburg County. From a judgment of non-suit, the plaintiff appealed.

Burwell & Cansler and Jones & Tillett, for the plaintiff.

Maxwell & Keerans, for the defendant.

Per Curiam.

The facts in the case come clearly within the language of Justice Montgomery speaking for the court in Raiford v. Railroad, 130 N. C., 597: “No act or omission, though resulting in damage, can be deemed actionable negligence unless the one responsible could, by the exercise of ordinary care, under all the circumstances, have foreseen that it might result in damage to some- one.” This is one of those *438misfortunes against wbicb no reasonable human foresight could have made provision.

Affirmed.

Walker, J., having been of counsel did not sit on tho hearing of this case.