Ballinger v. Thomas

• Decision Date: 25 April 1928
• Docket Number: 383.
• Parties: BALLINGER v. THOMAS et al.
• Court: North Carolina Supreme Court

142 S.E. 761

195 N.C. 517

BALLINGER v. THOMAS et al.

No. 383.

Supreme Court of North Carolina

April 25, 1928

Appeal from Superior Court, Guilford County; Harding, Judge.

Action by Julia L. Ballinger against C. E. Thomas and the Southern Railway Company. From judgment overruling its demurrer to the complaint and dismissing its demurrer to the answer of defendant Thomas, the Southern Railway Company appeals. Reversed in part, and affirmed in part.

Complaint in action by automobile occupant against driver and railroad held not to state cause of action against railroad because failing to show railroad's negligence was proximate cause of injury.

Civil action brought by plaintiff against C. E. Thomas and Southern Railway Company to recover damages for an alleged negligent injury.

A demurrer was interposed by the Southern Railway Company upon two grounds: (1) That the complaint does not state facts sufficient to constitute a cause of action against the demurring defendant; (2) that there is a misjoinder both of parties and causes of action.

The material allegations of the complaint, so far as essential to a proper understanding of the legal questions involved, may be abridged and stated as follows:

(1) That on June 9, 1927, plaintiff was a passenger in an automobile owned and driven by C. E. Thomas, when she was severely and permanently injured on state highway No. 15, at a railroad crossing about two miles east of Charlotte, N. C.

(2) That the defendant C. E. Thomas was negligent in the following particulars:

(a) Said defendant carelessly, negligently, and without regard for the safety of plaintiff, on approaching said railroad crossing, suddenly turned his automobile to the right, and drove it off the concrete or asphalt highway, and into a hole, so that it turned over and injured plaintiff.

(b) Said defendant negligently and in violation of law failed to bring his automobile to a complete stop 50 feet from the crossing.

(c) Said defendant negligently failed to slow down or stop, look, and listen for an on-coming locomotive, but drove his automobile within a few feet of the crossing before undertaking to avoid the on-coming locomotive.

(d) Said defendant negligently approached the crossing at a rapid and unlawful rate of speed and in a careless and negligent manner, when he knew, or by the exercise of ordinary care should have known, that it was a place of danger, and that a locomotive might be approaching.

(e) Said defendant "then, upon observing the on-coming locomotive, carelessly and negligently turned the said automobile off the highway, and turned the same over as hereinbefore alleged."

(3) That the defendant Southern Railway Company was negligent in the following particulars:

(a) Said defendant negligently and carelessly failed to give any timely warning of the approach of its locomotive either by ringing a bell or blowing the whistle.

(b) Said defendant's engineer or fireman failed to keep a proper lookout "so as to slow down or stop the said locomotive in time to avoid placing the defendant C. E. Thomas in a position of peril, and the joint and concurrent negligence of the defendants proximately caused the injury of this plaintiff."

(c) Said defendant's employees knew, or by the exercise of ordinary care could have known, that the crossing in question was a dangerous one, and that the view of persons on the highway was obstructed by the underbrush and the curvature of the track.

(d) Said defendant carelessly and negligently failed to keep a proper lookout, when, by so doing, its servants might have been able to observe plaintiff's position of peril in time to have slowed down the locomotive, and thus enabled the defendant Thomas to pass over the crossing without injuring the plaintiff.

(4) That all of said "acts of negligence on the part of the defendants jointly and concurrently proximately caused the plaintiff's injury, which injury was through no fault of said plaintiff, for that she was not familiar with the highway, and did not know of the existence of said crossing, or that any danger was imminent."

The defendant C. E. Thomas filed answer, in which he denied any negligence on his part, and alleged that by reason of the negligence of the Southern Railway Company in failing to given timely warning of the approach of its rapidly moving train, he was suddenly placed in a position of peril, and, in order to prevent a collision and save himself, as well as the plaintiff, he was forced to turn his automobile from the highway, which he did without negligence on his part, etc. Said defendant further averred and set up that, if he were liable to the plaintiff in any respect, such liability was secondary and that of his codefendant primary, wherefore he asked that an issue of primary and secondary liability, as between the defendants, be submitted to the jury, and that he have judgment over for any amount plaintiff might recover against him.

The defendant Southern Railway Company also demurred to the answer of its codefendant, C. E. Thomas.

From a judgment overruling the demurrer to the complaint on both grounds, and dismissing the demurrer to the answer of the defendant C. E. Thomas, the Southern Railway Company appeals, assigning errors.

Hobgood, Alderman & Vinson, of Greensboro, for appellant Southern Ry. Co.

Frazier & Frazier, of Greensboro, for appellee.

King, Sapp & King, of Greensboro, for defendant Thomas.

STACY C.J.

The office of a demurrer is to test the sufficiency of a pleading, admitting, for the purpose, the truth of the allegations of fact contained therein, and ordinarily relevant inferences of fact, necessarily deducible therefrom, are also admitted, but the principle does not extend to the admissions of conclusions or inferences of law. State ex rel. Greene County v. First Nat. Bank, 194 N.C. 436, 140 S.E. 38; Ideal Brick Co. v. Gentry, 191 N.C. 636, 132 S.E. 800.

It is provided by 3 C. S. § 513, that, when a demurrer is filed to a complaint, the plaintiff may be allowed to amend, so as to obviate the necessity of debating the rights of the parties on mere allegations rather than on evidence and findings of fact. But, as this was not done in the instant case, and as both parties are standing strictly upon their rights, we must assume that the plaintiff has laid her case precisely as she hopes to recover, or as her evidence will tend to show, and, upon the allegations of the complaint, thus deliberately made and unchanged or unamended when challenged, we are required to say, in the first instance, whether sufficient facts have been stated to constitute a cause of action against the Southern Railway Company. If this be decided in the negative, the second ground upon which the appealing defendant bases its demurrer to the complaint need not be considered.

That one who is riding in an automobile, the driver of which is not his agent or servant, nor under his control, and who is injured by the joint or combined negligence of a third person and the driver, may recover of either or both, upon proper allegations, for the injuries thus inflicted through such concurring negligence, is fully established...