67 S.E. 502 | N.C. | 1910
The facts are stated in the opinion of the Court. This was a motion to remove this action, which was brought in Wayne, to Rowan County for trial by virtue of the proviso in Rev., 424: "In all actions against railroads the action shall be tried either in the county where the cause of action arose or in the county in which the plaintiff resided at the time the cause of action arose or in some county adjoining the county in which the cause of action arose. "
Upon affidavits filed by both parties, his Honor found the facts as follows: "(1) That the parents of the plaintiff, Kirby Watson, are now, and have been for more than twenty years, residents of Wayne County; (2) that the plaintiff was born in Wayne County and lived in said county until January, or February, 1909; (3) that in January or February, 1909, he married in Johnston County, and in March, 1909, he entered the service of the Southern Railway Company at Spencer, Rowan County, as a car repairer under a contract which either party could terminate at will; (4) that after entering into said contract he took his wife to Spencer, and he and his wife lived at Spencer from that time up to the time of the injury complained of; (5) that the plaintiff has not intended to change his residence from Wayne County; (6) that the plaintiff is not now twenty-one years of age; (7) that the cause of action arose in Rowan County; and upon said facts, being of the opinion that the plaintiff is now and was on 6 May, 1909, a resident of Wayne County, it is considered and adjudged that said motion be denied." *209
The word "residence" has, like the word "fixtures," different shades of meaning in the statutes (Overman v. Sasser,
Probably the clearest definition is that in Barney v. Oelrichs,
The facts found by the judge are conclusive upon us. He found that the plaintiff was living at Spencer from March to May, when the injury occurred, as a car repairer, in the defendant's service, under a contract terminable at the will of either party, and that he had never intended to change his residence from Wayne County. Upon these facts he properly held that the plaintiff retained his residence in Wayne, and *210
refused the motion to remove. It was competent for the plaintiff to testify to his intent. Hannon v. Grizzard,
The object of the proviso added to Rev., 424, by ch. 367, Laws, 1905, was not to prohibit actions being brought against railroads in the county where the plaintiff resides, but to prohibit the selection of any (218) county where the defendant had its track (the former law), except the county where the cause of action accrued, or an adjoining county.
The judgment refusing to remove the cause is
Affirmed.
Cited: Fann v. R. R.,