142 S.E. 761 | N.C. | 1928
Civil action brought by plaintiff against C. E. Thomas and Southern Railway Company to recover damages for an alleged negligent injury.
A demurrer was interposed by the Southern Railway Company upon two grounds: (1) That the complaint does not state facts sufficient to constitute a cause of action against the demurring defendant; (2) that there is a misjoinder both of parties and causes of action.
The material allegations of the complaint, so far as essential to a proper understanding of the legal questions involved, may be abridged and stated as follows:
1. That on 9 June, 1927, plaintiff was a passenger in an automobile owned and driven by C. E. Thomas, when she was severely and permanently injured on State Highway No. 15, at a railroad crossing about two miles east of Charlotte, N.C.
2. That the defendant, C. E. Thomas, was negligent in the following particulars:
a. Said defendant carelessly, negligently and without regard for the safety of plaintiff, on approaching said railroad crossing, suddenly turned his automobile to the right and drove it off the concrete or asphalt highway and into a hole so that it turned over and injured plaintiff.
b. Said defendant negligently and in violation of law failed to bring his automobile to a complete stop fifty feet from the crossing.
c. Said defendant negligently failed to slow down or stop, look and listen for an oncoming locomotive, but drove his automobile within a few feet of the crossing before undertaking to avoid the oncoming locomotive.
d. Said defendant negligently approached the crossing at a rapid and unlawful rate of speed and in a careless and negligent manner when he knew, or by the exercise of ordinary care should have known, that it was a place of danger and that a locomotive might be approaching.
e. Said defendant "then upon observing the oncoming locomotive, carelessly and negligently turned the said automobile off the highway and turned the same over as hereinbefore alleged." *519
3. That the defendant, Southern Railway Company, was negligent in the following particulars:
a. Said defendant negligently and carelessly failed to give any timely warning of the approach of its locomotive either by ringing a bell or blowing the whistle.
b. Said defendant's engineer or fireman failed to keep a proper lookout "so as to slow down or stop the said locomotive in time to avoid placing the defendant, C. E. Thomas, in a position of peril, and the joint and concurrent negligence of the defendants proximately caused the injury of this plaintiff."
c. Said defendant's employees knew, or by the exercise of ordinary care could have known, that the crossing in question was a dangerous one and that the view of persons on the highway was obstructed by the underbrush and the curvature of the track.
d. Said defendant carelessly and negligently failed to keep a proper lookout when by so doing, its servants might have been able to observe plaintiff's position of peril in time to have slowed down the locomotive and thus enabled the defendant Thomas to pass over the crossing without injuring the plaintiff.
4. That all of said "acts of negligence on the part of the defendants jointly and concurrently proximately caused the plaintiff's injury, which injury was through no fault of said plaintiff, for that she was not familiar with the highway and did not know of the existence of said crossing or that any danger was imminent."
The defendant, C. E. Thomas, filed answer in which he denied any negligence on his part and alleged that by reason of the negligence of the Southern Railway Company, in failing to give timely warning of the approach of its rapidly moving train, he was suddenly placed in a position of peril, and in order to prevent a collision and save himself, as well as the plaintiff, he was forced to turn his automobile from the highway, which he did without negligence on his part, etc. Said defendant further averred and set up that if he were liable to the plaintiff in any respect, such liability was secondary and that of his codefendant primary, wherefore he asked that an issue of primary and secondary liability, as between the defendants, be submitted to the jury, and that he have judgment over for any amount plaintiff might recover against him.
The defendant, Southern Railway Company, also demurred to the answer of its codefendant, C. E. Thomas.
From a judgment overruling the demurrer to the complaint on both grounds, and dismissing the demurrer to the answer of the defendant, C. E. Thomas, the Southern Railway Company appeals, assigning errors. *520
after stating the case: The office of a demurrer is to test the sufficiency of a pleading, admitting, for the purpose, the truth of the allegations of fact contained therein, and ordinarily relevant inferences of fact, necessarily deducible therefrom, are also admitted, but the principle does not extend to the admissions of conclusions or inferences of law. S. v. Bank,
It is provided by 3 C. S., 513, that when a demurrer is filed to a complaint, the plaintiff may be allowed to amend, so as to obviate the necessity of debating the rights of the parties on mere allegations rather than on evidence and findings of fact. But as this was not done in the instant case, and as both parties are standing strictly upon their rights, we must assume that the plaintiff has laid her case precisely as she hopes to recover, or as her evidence will tend to show, and upon the allegations of the complaint, thus deliberately made and unchanged or unamended when challenged, we are required to say, in the first instance, whether sufficient facts have been stated to constitute a cause of action against the Southern Railway Company. If this be decided in the negative, the second ground upon which the appealing defendant bases its demurrer to the complaint need not be considered.
That one who is riding in an automobile, the driver of which is not his agent or servant, nor under his control, and who is injured by the joint or combined negligence of a third person and the driver, may recover of either or both, upon proper allegations, for the injuries thus inflicted through such concurring negligence, is fully established by our own decisions and the great weight of authority elsewhere. Hanes v. Utilities Co.,
The rule is stated in Matthews v. Delaware L. W. R. Co.,
But do the allegations set out in the complaint bring the instant case within the principle announced in these decisions? The plaintiff says that they do, while the demurring defendant says that they do not. We think the facts alleged are insufficient to state a cause of action against the Southern Railway Company, and that the case is controlled by the decision in Harton v. Tel. Co.,
The demurrer might be overruled and the judgment upheld but for the allegation against the defendant Thomas, the driver of the automobile in which the plaintiff was riding (set out in paragraph "e" above), to the effect that said defendant, upon observing the oncoming locomotive, carelessly and negligently turned his automobile off the highway and ran it into a hole so that it turned over and injured the plaintiff. This alleged negligent conduct of the defendant Thomas, it will be observed, took place after he had seen the oncoming locomotive, which necessarily "insulated" the negligence of the appealing defendant, as it was no longer operative or active, and rendered Thomas' negligence the proximate cause of plaintiff's injury. Harton v. Tel. Co.,
Speaking to the subject in his valuable work on Negligence (138), Mr. Wharton very pertinently says: "Suppose that, if it had not been for the intervention of a responsible third party, the defendant's negligence would have produced no damage to the plaintiff: is the defendant liable *522 to plaintiff? This question must be answered in the negative, for the general reason that causal connection between the negligence and damage is broken by the interposition of defendant's responsible human action. I am negligent on a particular subject-matter. Another person, moving independently, comes in and, either negligently or maliciously, so acts as to make my negligence injurious to a third person. If so, the person so intervening acts as a nonconductor and insulates my negligence, so that I cannot be sued for the mischief which the person so intervening directly produces. He is the one who is liable."
The same rule announced by Mr. Justice Strong in R. R. v. Kellogg,
The allegation that the negligence of "the defendants jointly and concurrently proximately caused the plaintiff's injury" is but a conclusion of the pleader, negatived by the facts previously alleged, and is not admitted by the demurrer. Broad Street Bank v. Nat. Bank,
From a careful perusal of the record, viewed in the light of the pertinent authorities on the subject, we are of opinion that the complaint does not state facts sufficient to constitute a cause of action against the appealing defendant, Southern Railway Company. For this reason, the demurrer to the complaint should have been sustained.
While the allegations presently appearing of record may not be sufficient to raise an issue of primary and secondary liability as between the defendants, nevertheless the answer of the defendant, C. E. Thomas, is not subject to demurrer. Taylor v. Construction Co., ante, 30; Bowman v.Greensboro,
Nothing was said in Moses v. Morganton,
Reversed in part and affirmed in part. *523