Cherry v. Atlantic Coast Line R. Co.

• Citation: 116 S.E. 192,185 N.C. 90
• Decision Date: 07 March 1923
• Docket Number: 156.
• Parties: CHERRY v. ATLANTIC COAST LINE R. CO.
• Court: United States State Supreme Court of North Carolina

116 S.E. 192

185 N.C. 90

CHERRY v. ATLANTIC COAST LINE R. CO.

No. 156.

Supreme Court of North Carolina

March 7, 1923

Appeal from Superior Court, Pitt County; Calvert, Judge.

Action by George E. Cherry, Jr., against the Atlantic Coast Line Railroad Company. From a judgment sustaining a demurrer and dismissing the action, plaintiff appeals. Reversed.

After the jury had been impaneled, the defendant demurred ore tenus to the complaint, and, from a judgment sustaining the demurrer and dismissing the action, the plaintiff appealed.

F. C Harding, F. G. James & Son, and D. M. Clark, all of Greenville, for appellant.

Skinner & Whedbee, of Greenville, for appellee.

ADAMS J.

Generally speaking a demurrer may not be entertained after the answer is filed, unless by leave of court the answer is withdrawn because a defendant is not permitted to answer and demur to one cause of action at the same time. Finch v Baskerville, 85 N.C. 205; Moseley v. Johnson, 144 N.C. 257, 56 S.E. 922; Rosenbacher v. Martin, 170 N.C. 236, 86 S.E. 785. But this ruling does not apply when objection is entered to the jurisdiction of the court or to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. C. S. § 518, and cases cited.

After the jury had been impaneled in this case and presumably after the pleadings had been read, the defendant demurred ore tenus to the complaint and moved to dismiss the action for the assigned reason that the complaint does not state a cause of action. Thereby the defendant admitted the truth of the allegations in the complaint, which must be construed in the aspect most favorable to the plaintiff. Quarry Co. v Construction Co., 151 N.C. 345, 66 S.E. 217; Wilcox v. R. R., 152 N.C. 316, 67 S.E. 758; Kendall v. Highway Com., 165 N.C. 600, 81 S.E. 995; McGhee v. R. R., 147 N.C. 142, 60 S.E. 912, 24 L. R. A. (N. S.) 119; Green v. Telegraph Co., 136 N.C. 489, 49 S.E. 165, 67 L. R. A. 985, 103 Am. St. Rep. 955, 1 Ann. Cas. 349.

What, then, are the plaintiff's allegations? He says that he was 9 years of age when he was injured; that while he was at the defendant's station in the town of Greenville he was requested by the defendant's station agent to mail a letter on one of the defendant's trains, which at that time had just started to move from the depot, or was moving slowly; that the letter was addressed to one of the defendant's officers in the city of Wilmington and related to the defendant's business; that the plaintiff mailed the letter as requested, and, while returning along a path at the "edge of the roadway," stumbled over a pile of coal cinders which the defendant had left in the roadway in violation of a town ordinance, and was injured by the passing train. The principal alleged acts of negligence are the breach of the town ordinance and the negligent employment by the defendant of an immature and inexperienced youth to go upon a dangerous mission. There are other allegations in the complaint to which we need not more particularly refer. The question is whether the allegations state any cause of action.

While the complaint is not specific or definite as to the proximate cause of the injury and as to other matters which may be material on the trial, we cannot hold as a matter of law that it is fatally defective by reason of vagueness, or uncertainty, for circumstances are alleged which, if established at the trial by a preponderance of the evidence, in accordance with the plaintiff's contentions, will entitle the plaintiff to relief, and this is one of the tests of the sufficiency of the alleged cause of action.

It is contended that the cinders were not in the street but in the roadway. "Roadway" means a road, and the word "road," while generally applied to highways, has a broader generic sense, including street as well as highway. Webst. Int. Dict.; People...