#### E. V. AUTRY, Administratrix of B. L. AUTRY, v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 18 October, 1911.)

1. Railroads — Freight Depot — Dangerous Conditions — Negligence.

A railroad company is required to keep its premises in a reasonably safe condition for persons wlio come for the purpose of receiving freight from their depots.

*2942. Same — Notice—Evidence—Questions for Jury — Contributory Negligence.

Plaintiff's intestate went to the defendant’s freight depot to receive heavy machinery packed in boxes, and when leaving, with the boxes on his wagon, the wagon wheel fell hito a hole, which caused the boxes to fall on him and crush his head, and he died from the injury thus received. There was evidence tending to show that the hole was on the defendant’s premises and in the only available way of ingress and egress, and that the railroad company had been previously notified of the danger of this hole and had promised to remedy it: Held, (1) evidence sufficient as to defendant’s negligence to sustain a verdict in plaintiff’s favor; (2) the proximate cause of the injury was the falling of the wagon wheel into the hole.

Appeal from Ooolce, J., and a jury, February Term, 1911, of CUMBERLAND.

This was a civil action for tbe alleged negligent billing of tbe plaintiff’s intestate near tbe defendant’s freight depot at Hope Mills, N. 0., on tbe first day of July, 1903.

Tbe court submitted these issues:

1. Was tbe plaintiff’s intestate, B. L. Autry, killed by tbe negligence of tbe defendant? Answer: Yes.

2. Did tbe said B. L. Autry, by bis own negligence, contribute to bis death? Answer: No.

3. What amount is tbe plaintiff entitled to recover as damages? Answer: $2,000.

From tbe judgment rendered tbe defendant appealed.

H. L. Ooolc, Sinclair & Dye for plaintiff.

Bose & Rose for defendant.

Brown, J.

In apt time tbe defendant moved to nonsuit. His Honor properly denied tbe motion.

There is abundant evidence in tbe record tending to prove that plaintiff’s intestate, an employee of tbe Hope Mills Manufacturing Company, was sent with a wagon to . defendant’s freight depot for certain heavy boxes of mill machinery; that they were safely loaded on tbe wagon, and that on way out from tbe depot tbe wagon wheel ran into a rut or bole 8 inches deep, which caused tbe boxes to topple over, throwing tbe in*295testate out of tbe wagon, and tbe bos, wbicb be bad attempted to bold steady, fell upon and crushed bis bead.

Plaintiff also introduced evidence tending to prove tbat “tbe place or bole where tbe wagon dropped in was 2% feet from corner of depot. No other way to get out from tbe depot but to go tbat way; it was on tbe right of way, and it was not a public road along there.” There was also evidence tending to prove tbat tbe mayor of tbe town bad notified by letter defendant’s general manager of tbe condition of tbe right of way, and tbat be bad written tbat it should be properly attended to.

There was evidence also by defendant tbat tbe bole was not on tbe right of way, as well as other evidence contradicting plaintiff’s averments.

We think tbe jury were warranted by tbe evidence offered by plaintiff in finding tbat plaintiff’s intestate was rightfully at tbe station removing tbe freight; tbat be took only way out; tbat on tbe defendant’s premises tbe wagon wheel ran into tbe deep rut and caused tbe boxes to fall on tbe intestate and kill him.

Tbe negligence consists in evidence of defendant’s failure to keep its premises in a reasonably safe condition for persons who come for tbe purpose of transacting business. Finch v. R. R., 151 N. C., 105, and cases cited; R. R. v. Wolfe, 80 Ky., 82.

Tbe disputed question as to whether tbe bole was on tbe defendant’s premises was properly and fairly put to tbe jury..

As to what was tbe proximate cause of tbe injury, instead of leaving it to the jury, bis Honor might well have charged them that upon all tbe evidence it was tbe falling of tbe wagon wheel into tbe bole.

We have examined tbe several assignments of error and think tbat none of them can be sustained. To discuss them seriatim, is, in our opinion, needless.

No error.