Brown v. Atlantic Coast Line R. Co.

• Decision Date: 20 March 1935
• Docket Number: 241.
• Citation: 179 S.E. 25,208 N.C. 57
• Parties: BROWN v. ATLANTIC COAST LINE R. CO. et al.
• Court: North Carolina Supreme Court

179 S.E. 25

208 N.C. 57

BROWN v. ATLANTIC COAST LINE R. CO. et al.

No. 241.

Supreme Court of North Carolina

March 20, 1935

Appeal from Superior Court, Wayne County; Small, Judge.

Civil action by Harry Brown against the Atlantic Coast Line Railroad Company and others. Judgment sustaining a demurrer to the complaint, and plaintiff appeals.

Reversed.

Tort-feasors whose several neglects concurred and united together in causing injury are jointly liable, though their duties to injured person were diverse and disconnected, and negligence of each was without concert.

Civil action to recover damages for alleged negligent injury.

The complaint alleges:

(1) That on March 8, 1934, plaintiff was a guest in an automobile, owned by Joe Brown and operated at the time by Matthew Kornegay, which collided with a train of the Atlantic Coast Line Railroad Company in the town of Garland, Sampson county, where highway No. 23 crosses the track of the defendant railroad, and resulted in great injury to the plaintiff.

(2) That S. L. Long and J. A. King were, respectively, conductor and engineer in charge of defendant's train.

(3) That the crossing was a dangerous one by reason of obstructions on the right of way, etc.

(4) That defendants permitted the train to block the highway in such manner and for such an unreasonable length of time as to create a dangerous obstruction, etc., and failed to take any precautions or to warn travelers upon the highway of such dangers.

(5) That the defendant, Joe Brown, was negligent, in that his automobile at the time of the collision was in bad condition defective brakes, etc., and was being driven in a careless and heedless manner so as to endanger the lives of persons riding in said automobile.

(6) That the negligence of each of the defendants continued up to the time of the collision and concurred as a proximate cause in producing plaintiff's injury.

Wherefore plaintiff prays, etc.

Demurrer interposed by the Atlantic Coast Line, S. L. Long, and J. A King, on the ground that the complaint does not state facts sufficient to constitute a cause of action against said defendants or any of them. Demurrer sustained. Plaintiff appeals.

Kenneth C. Royall and Robert A. Hovis, both of Raleigh, and Paul B. Edmundson, of Goldsboro, for appellant.

Thomas W. Davis and V. E. Phelps, both of Wilmington, Dickinson & Bland, of Goldsboro, and W. B. R. Guion, of New Bern, for appellees.

STACY Chief Justice.

The theory of the demurrer and the court's ruling is that the negligence alleged against the owner of the automobile, ex necessitate, insulates the negligence of the demurring defendants as a proximate cause, or one of the proximate causes, of plaintiff's injury. George v. R. R., 207 N.C. 457, 177 S.E. 324; Ballinger v. Thomas, 195 N.C. 517, 142 S.E. 761. The conclusion is a non sequitur on the allegations of the complaint. Keller v. R. R., 205 N.C. 269, 171 S.E. 73; Brown v. R. R., 204 N.C. 25, 167 S.E. 479; Sanders v. R. R., 201 N.C. 672, 161 S.E. 320; Godfrey v. Coach Co., 201 N.C. 264, 159 S.E. 412; Campbell v. R. R., 201 N.C. 102, 159 S.E. 327; Ballinger v. Thomas, supra; Hanes v. Utilities Co., 191 N.C. 13, 131 S.E. 402; White v. Realty Co., 182 N.C. 536, 109 S.E. 564; Duffy v. R. R., 144 N.C. 26, 56 S.E. 557; 25 R. C. L. 1292; 90 A. L. R. 631.

It is well settled by the decisions here and elsewhere 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...