39 S.E. 772 | N.C. | 1901
This is an action for damages for injuries sustained by plaintiff's testator, which, it is alleged, resulted some months later in his death. The answer denies that the injury was caused by the negligence of the defendant, and also that it caused his death. The issue thus raised has not been passed upon by the jury. The issue submitted and found affirmatively — "Was the plaintiff's testator injured by the negligence of the defendant?" — does not find that *100
such injury caused the death, but by implication at least finds that it did not. If the injury caused the death, this action is maintainable by virtue of The Code, sec. 1498, which changed the common law in such cases, Killianv. Railroad,
With that material allegation denied by the answer and not passed upon by the jury, no judgment can be entered. It is true, that if all the points raised can be presented to the jury upon the issues submitted, they will be deemed sufficient, but such is not the case when, as here, the verdict is not a sufficient basis for a judgment. Redmond v. Chandley,
New trial. *101