Allen v. Carolina Cent. R. Co

• Decision Date: 20 April 1897
• Citation: 27 S.E. 76,120 N.C. 548
• Court: North Carolina Supreme Court
• Parties: ALLEN v. CAROLINA CENT. R. CO.

27 S.E. 76

120 N.C. 548

ALLEN

v.CAROLINA CENT. R. CO.

Supreme Court of North Carolina.

April 20, 1897.

Pleading—Demurrer—Motion to Make More Definite.

A demurrer to a complaint in an action for negligence on the ground that the negli gence alleged was not sufficiently set forth should be overruled; the remedy being by motion to make more definite.

Appeal from superior court, Mecklenburg county; Norwood, Judge.

Action by Prank Allen against the Carolina Central Railway Company for personal injuries caused by defendant's negligence. Prom a judgment overruling its demurrer to the complaint, defendant appeals. Affirmed and remanded.

The complaint is as follows: "The plaintiff complains and alleges: First. That the defendant at the time hereinafter stated was, and still is, a corporation duly created and organized under the law, and was, and still is, a common carrier of goods, wares, merchandise, and passengers, and operated a railroad between the city of Charlotte, North Carolina, and the city of Wilmington, in said state, and used for this purpose railroad tracks, side tracks, engines, cars, etc., for the necessary conduct of its business as a railroad. Second. That, on or about the 10th day of June, 1893, the plaintiff, while in the employ of the defendant, was injured by a brake on one of the cars of the defendant breaking; that the brake was defective, which was unknown to the plaintiff, which by reasonable care could have been discovered by the defendant; that the plaintiff served the defendant as a coupler and shifter, and was ordered by the conductor to put on the brake, Which he did in a careful and cautious manner; that the defendant, by reasonable diligence, might have known of the defectiveness and unsoundness of the brake. Third. That the plaintiff used due care and caution in putting on the brake, which he was ordered to do by Lis superior and boss, the conductor of the train, whom he was bound to obey;, that, upon his putting on the brake, it broke, throwing him violently to the ground below; that he was knocked senseless, and was and is permanently injured; that his injuries received were no fault of his, but on account of the imperfect machinery, carelessness, and negligence of the defendant; that, by reason of the negligence of the defendant as aforesaid, plaintiff was damaged five thousand ($5,000) dollars. Wherefore plaintiff demands judgment against the defendant (1) for the sum of five thousand dollars; (2) for costs of action."

The demurrer is as follows: "The defendant demurs to the complaint filed in this action, and for cause of demurrer says that the negligence alleged is not sufficiently and legally set out."

Burwell, Walker &...