Ballinger v. . Thomas
142 S.E. 761
N.C.
1928
Check Treatment
Stacy, C. J

after stating the ease: 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, 194 N. C., 436; Brick Co. v. Gentry, 191 N. C., 636, 132 S. E., 800.

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., 191 N. C., 13, 131 S. E., 402; White v. Realty Co., 182 N. C., 536, 109 S. E., 564; Wood v. Public Service Corp., 174 N. C., 697, 94 S. E., 459; Pusey v. R. R., 181 N. C., 137, 106 S. E., 452; Bagwell v. R. R., 167 N. C., 611, 83 S. E., 814; Harton v. Tel. Co., 141 N. C., 455, 54 S. E., 299; Carterville v. Cook, 129 Ill., 152, 16 Am. St. Rep., 248, and note.

The rule is stated in Matthews v. Delaware L. & W. R. Co., 56 N. J. L., 34, 27 Atl., 919, 22 L. R. A., 261, by Magie, J., as follows: “If two or more persons owe to another the same duty, and by their common neglect of that duty he is injured, doubtless the tort is joint, and upon well settled principles, each, any or all of the tort-feasors may be held. But when each of two or more persons owes to another a separate duty which each wrongfully neglects to perform, then although the duties were *521 diverse and disconnected and tbe negligence of eacb was without concert, if such several neglects concurred and united together in causing injury, the tort is equally joint and the tort-feasors are subject to joint and several liability.”

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., 146 N. C., 430, 59 S. E., 1022. As the ease is one which deals with exactness of phrase, perhaps it would be a little more accurate, though somewhat redundant, to say that the complaint apparently first undertakes to state a cause of action against both defendants, and then withdraws it as against the appealing defendant. We must consider the pleading in its entirety.

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., 146 N. C., 430, 59 S. E., 1022. Note, it is not .alleged in the complaint that Thomas, the driver of the automobile, ran his machine off the highway to avoid a collision or in an effort to extricate himself and the plaintiff from a position of peril, produced by the negligence of the railroad company, but the allegation is that said defendant carelessly and negligently, i. e., needlessly, drove his car off the highway, after he had all the information which bell or whistle signal would have given him, and injured the plaintiff. This necessarily means that the alleged negligence of the railroad company was remote, while that of the defendant Thomas was proximate. Construction Co., v. R. R., 184 N. C., 179, 113 S. E., 672. Hence, upon all the facts alleged by the plaintiff in her complaint, it appears that the negligence charged against the defendant, Southern Railway Company, was not in law the proximate cause of her injury.

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, 94 U. S., 469, regarded as sound in principle and workable in practice, has been quoted with approval in a number of our decisions. He says: “The question always is, was there an unbroken connection between the wrongful act and the injury — a continuous operation? Did the facts constitute a continuous succession of events, so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury? It is admitted that the rule is difficult of application. But it is generally held that, in order to warrant a finding that negligence, or an act amounting to a wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence, or wrongful act, and that it ought to have been foreseen in the light of attending circumstances.”

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, 183 N. C., 463, 112 S. E., 11.

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,, 190 N. C., 611, 130 S. E., 502. He alleges that the Southern Railway Company is solely responsible for plaintiff’s injury. This latter pleading on the part of the appealing defendant was properly dismissed.

Nothing was said in Moses v. Morganton, 192 N. C., 102, 133 S. E., 421, which militates against our present position.

Reversed in part and affirmed in part.