64 S.E. 186 | N.C. | 1909
This action was brought to recover damages for the death of the plaintiff's intestate, which is alleged to have been caused by the negligence of the defendant's lessee, the Southern Railway Company. It is alleged in the complaint that, prior to 6 August, 1907, the defendant leased its road, fixtures and franchise to the Southern Railway Company for a term of years, and that on said day "the defendant's lessee, by and with the knowledge, consent and approval of the defendant, was operating freight and passenger trains along said line of railway," the intestate being one of its locomotive engineers, and that while so employed and engaged in the performance of his duty he was killed by the collision of the engine, which was then in his charge as engineer, and a train of the defendant's lessee, and that the collision was caused *357
by the negligence of the said lessee. The defendant demurred on the ground that it did not sufficiently appear in the complaint that the lease was in force at the time the plaintiff's intestate was killed, nor that the intestate was acting under instructions given by the said lessee. We have stated only the substance of the complaint and demurrer. The court overruled the demurrer and permitted the defendant to answer, and to this ruling the defendant excepted and appealed. We do not entertain any doubt as to the correctness of the ruling of the court. It appears, at least substantially, in the complaint that at the time the intestate was killed the Southern Railway Company was operating the railway of the defendant as its lessee, and that the intestate was in the employ of the lessee and in the discharge of his duty as one of its engineers. That the defendant, as lessor, is liable for the negligent killing of the intestate by its lessee has been settled by numerous decisions of this Court. Logan v. R. R.,
The plaintiff contended in this Court that the demurrer was frivolous and judgment by default and inquiry should have (435) been entered in the court below, and that we should direct such a judgment to be entered. But he did not move for judgment, as required by the Revisal, sec. 656, which provides that "If a demurrer, answer or reply be frivolous, the party prejudiced thereby may apply to the court or to the judge thereof for judgment thereon, and judgment may be given accordingly." See, also, Revisal, sec. 472. Nor did the plaintiff except to the judge's order and appeal. The judge had the discretion to permit the defendant to answer after he had overruled the demurrer, even if it were frivolous. Dunn v. Barnes,
No error.
Cited: Kearnes v. Gray,
(436)