178 S.E. 219 | N.C. | 1935
This is an action to recover damages for the death of plaintiff's intestate.
The defendants demurred in writing to the complaint on the grounds set out in their demurrer. The demurrer was overruled, and the defendants appealed to the Supreme Court. When this appeal was called for hearing in this Court, the defendants demurred ore tenus to the complaint, on the ground that the facts stated therein are not sufficient to constitute a cause of action. This demurrer is sustained. *722
It does not appear from the complaint that the negligence of the defendants, as alleged therein, was the proximate cause of the death of plaintiff's intestate. The negligent construction or operation of the swing in Independence Park by the defendants furnishes no cause of action on which the plaintiff is entitled to recover damages for the death of his intestate, unless such construction or operation was the proximate cause of the death. There are no allegations in the complaint from which it appears that there was a causal connection between the construction or operation of the swing and the death of plaintiff's intestate. For this reason, no cause of action for actionable negligence is alleged in the complaint, and the demurrer ore tenus, although first interposed in this Court, must be sustained.
The questions of law presented by the written demurrer, and discussed in the briefs filed in this Court, have not been considered. The action is remanded to the Superior Court of Mecklenburg County, with direction that same be dismissed, unless within apt time the plaintiff moves for leave to amend his complaint. C. S., 515.
Reversed.
