(dissenting). This is an action for damages under the statute for the negligent killing of plaintiff’s intestate, Hugo Kramer, a boy 9 years of age. The facts, briefly stated, are, that in the year 1896, one, Grayson Lewis, the-owner of a lot of cross-ties, hauled and piled them on an unused part of Garden street, within ten or twelve feet of' the defendant’s railroad track. In the latter part of the-year 1897, Lewis sold them to one Dysart, and in April,. *3333898, Dysart sold them to defendant railroad company. On tbe 17th of August, 1898, the intestate of plaintiff and other boys of about the same size and age were playing on this pile of cross-ties, when some of the ties fell upon the intestate, and so injured him, that he died in a few weeks. ' The ties were piled lengthwise, not crossed, or “cribbed,” as it is called, and, being so piled, it is alleged, were dangerous for boys to play on. But defendant did not place them where they were, nor did.it pile them there, but they were just where Lewis piled them in 1896, and just as they were when defendant bought them. Upon the trial below, the verdict and judgment were against the plaintiff, and she appealed to this Court, and at the last term, her appeal was considered, and the judgment appealed from was affirmed. It is now before us upon a petition to rehear.
It has been held by this Court that the decision at the former hearing, on an application to rehear, is a precedent. But, if so, how far it should influence the Court, or what weight should be given to it, we will not undertake to say. But the general rule, as we understand it, is, that it devolves upon the appealing party to show substantial error which did or might have injured him, or the judgment appealed from will be affirmed. It may therefore bo, and we will not say that there is, no error in the charge of the Court. But, if there is, upon a careful examination, we are unable to see that plaintiff is injured, or that she might have been injured, by any such error, if there was such error.
To make the defendant liable, it must be shown that defendant has been guilty of doing something wrong, or has been guilty of negligence which was the proximate cause of the intestate’s injury and death. And it devolves upon the plaintiff to show this. To do this, the plaintiff shows that in April, 1898, the defendant bought a lot of cross-ties *334■ that bad been piled there two years before it bought them; that these boys had been in the habit of playing on them for months before defendant bought them without being injured, but that by the accidental falling of some of these ties, some two 'or three months after defendant bought them, the intestate was injured and billed. The plaintiff admitted on the argument, that the “Turntable Cases,” as they are called (17 Wall., 657), did not apply, as those cases were put upon the ground that a turntable was specially attractive to a child, and exceedingly dangerous; that the principle involved in those cases had no application to this case, as a pile of cross-ties was not specially attractive, nor was it, as a gen'eral rule, dangerous.
But, while the plaintiff properly conceded that the Turntable Cases did not apply, it was contended that defendant was liable upon another line of authorities, where it is held that if a lumber dealer piles wood or lumber on his own premises, though carelessly piled, and children play upon it, and are injured by its falling, the owner of the lumber is not liable in damages; but, if he piles his lumber on the land of some one else, he is a trespasser, and, if the lumber falls and injures the child, he is liable in damages. If there is such a distinction, it is upon the merest technicality. But suppose we admit this doctrine to be correct, and try the case by this rule, and the defendant is not liable. The defendant is compelled to have, cross-ties to repair and keep its road in order. It can not pile them on its track or road-bed. That would be to obstruct the running of its trains, and stop the transportation of passengers and the movement of freight. It is; therefore, compelled to put them on its right-of-way. And we know, as a matter of law (Laws 1854-55, chap. 228), that the defendant has an easement of 100 fee.t on each side of its road-bed for just such purposes as this. *335Suppose these cross-ties had been piled on. some other part of this easement that had not been located as a public road or street: could it be contended that it had no right to do so, and that it was a trespasser ?
We must suppose that plaintiff would admit that defendant has the right to pile cross-ties on its easement not occupied by anyone. But plaintiff says, if this is so, the defendant had no right to pile its cross-ties in the public road, and in so doing it was a trespasser, and therefore liable. Assuming, for the present, that they were piled within less than one hundred feet of defendant’s road-bed, which we will presently show to be the fact from plaintiff’s testimony, this is the question: Was the defendant a trespasser in allowing these cross-ties to remain where they were when it bought them ?
The public road or street having been located over the ground where they were piled did not take the defendant’s easement from it, except so far as the public use demanded it as a public highway, and defendant had the same right to use it as public highway that anyone else had. It could not, therefore, be a trespasser by using the road, though it may have used it improperly. If anyone using the street as a public highway had been injured on account of the cross-ties being in the public street be might have been entitled to damages.- But his action would not have been against the defendant as a trespasser, but for unlawfully obstructing the public highway, whereby and by reason of such obstruction he was injured. The plaintiff cited Dillon v. City of Raleigh, 124 N. C., 184, as authority for her position; but upon examination it will be found that it does not sustain her, but sustains the position we have taken. That was not an action against the city as a trespasser, but for allowing its streets to be and remain obstructed, and by reason of said *336obstruction, tbe plaintiff was injured. Suppose tbe plaintiff in Dillon v. City of Raleigh bad gone upon tbe bridge bver tbe railroad, where tbe obstructions were in tbe street below, .and had fallen and been injured; would tbe plaintiff contend that the city was guilty of a trespass, and therefore liable in damages ? But we have said that the defendant’s rights, as the owner of the easement, were only suspended so far as the traveling plublic demanded their suspension. Here was a public street located fifty or sixty feet wide, but it had only been open for public use for a space of twelve or fifteen feet wide; the other thirty-five or forty feet had not been open for public use, and was not used by the public as a highway. Then, can it be possible that defendant’s right to use it for the very purpose for which it was granted to defendant was suspended, and the defendant became a trespasser by using it? This is the turning point in the case, according to plaintiff’s view, as the attorney of plaintiff in his brief, discussing this case in connection with the Turntable Cases, says: “If a railroad company puts a turntable .and a pile of cross-ties on its own land, and a boy is injured on the pile of cross-ties, and another boy is injured on the turntable, then the distinction the Court made might save the company from liability as to the boy who was injured on the cross-ties, and it might be said that as to him the company had done no wrong and neglected no duty.”
So it seems to us that' tbe only thing remaining to be shown is, that the cross-ties were piled upon the company’s easement, which, as we have said, the plaintiff’s evidence shows to be so. I). H. Hudgins, a witness for plaintiff, on cross-examination, testified: “Question. The railroad crossed Harden street near where this pile of cross-ties lay ? Answer. Yes.” Same witness: “Question. Do you know those cross-ties were piled east of the east end of tbe crossing ? Answer. *337Just about on a line with it-.’ Same witness: “Question. And in order to run into- that pile of cross-ties a man would have to run into a ditch? Answer. No; he would have to cross the railroad track, and then go on, say ten or twelve feet, and then he would be opposite the end of the- cross-ties.” The evidence is uncontradicted that the cross-ties were piled on land located as a street, but had never been worked, and was not, and had never been, used by the public as a street. The evidence was all introduced by the plaintiff, and we are of the opinion that, taking every word of it to be true, the plaintiff failed to malee a case, and that defendant’s motion at the close of the evidence for judgment of non-suit should have been granted. The petition to re-hear should be dismissed.