Conley v. Richmond & D.R. Co.

• Decision Date: 23 December 1891
• Citation: 14 S.E. 303,109 N.C. 692
• Parties: CONLEY v. RICHMOND & D. R. CO.
• Court: North Carolina Supreme Court

14 S.E. 303

109 N.C. 692

CONLEY v. RICHMOND & D. R. CO.

Supreme Court of North Carolina

December 23, 1891

Appeal from superior court, Haywood county; JAMES H. MERRIMON Judge.

Action by Mary E. Conley, administratrix, against the Richmond & Danville Railroad Company for the death of Robert B. Conley alleged to have been caused by defendant's negligence. Defendant's demurrer to the complaint overruled, and defendant appeals. Reversed. The third and fourth paragraphs of the complaint were as follows: "(3) That on or about the 24th day of August, 1890, Robert B. Conley, the intestate of the plaintiff, being then rightfully on a train of cars of the defendant, on his way to Waynesville, N. C., was, by the wrongful act, neglect, and default of the defendant, slain and killed. (4) That on or about the 24th day of August 1890, Robert B. Conley, the intestate of the plaintiff, being rightfully on a train of cars of the defendant between Balsam station and Waynesville, by the gross negligence of the defendant, was slain and killed." The grounds of demurrer were that the negligence complained of is not sufficiently and legally set out; and that it does not state facts sufficient to constitute a cause of action.

Where a complaint alleges that, on or about a certain day plaintiff's intestate, "being then rightfully on a train of cars of defendant on his way to W., was, by the wrongful act, neglect, and default of defendant, slain and killed," and there are no other allegations of negligence, or of facts tending to show negligence, a demurrer, stating as the ground thereof "that the negligence complained of is not sufficiently and legally set out," is sufficiently specific.

D. Schenck, F. H. Busbee, and J. M. Moody, for appellant.

G. S. Ferguson and W. B. Ferguson, for appellee.

AVERY J.

The necessity for drawing pleadings in civil actions, according to a prescribed or established precedent, ceased when the forms of suits were abolished by the constitution, art. 4, § 1. But one who is brought into court to answer a demand for damages or for specific property has the same fundamental right to know the nature of the demand sufficiently well to enable him, with the aid of competent counsel, to prepare his defense, that he has to be informed of the accusation for which he is held to answer criminally. Otherwise his property might be wrested from him under the form of law, not because of inability to overwhelm by the greater weight of evidence any prima facie proof offered by the plaintiff, but for the reason that the cause of action is so defectively stated in the complaint that the specific testimony necessary to meet it cannot be intelligently looked for and adduced. Suppose that in fact it were the purpose of the plaintiff, administratrix, to prove that intestate was thrown from the track by a passing engine "on or about the 24th of August, 1890," and subsequently died from injuries so received. It will be seen that the complaint leaves the day and the precise locality, as well as the circumstances alleged to have accompanied the act of inflicting the injury, indefinite. If such action were in fact groundless, as it might possibly be, how could the company know which of its servants to summon in order to meet the evidence to be offered? In ignorance as to the time or the precise place that would prove to be the scene of the alleged injury, it must summon all of its officers and servants, and suspend operations for a term of court, or temporarily fill the places of all by employing substitutes. We think that the defendant had the right to a statement sufficiently specific to so far inform it as to the nature of the action that it would not, without default on its part, lose the benefit of a complete defense, which it might possibly be in its power to make good but for the want of more definite information in the complaint. In this case it is consistent with the statement of the case to conjecture that the death of the intestate may be shown by plaintiff's testimony, if believed, to be due to the acts of the conductor or other employe of the defendant in shooting him or pushing him violently off the train, running the train over him, or throwing the train off the track. Death may be shown in the same way to have followed the injury immediately or after the lapse of days or months, and without notice of the claim for damages on the part of the plaintiff. It is just for the courts to make such rules as will guard against possible infringement upon the rights of the citizen, and that can only be done by supposing that facts not inconsistent with the plaintiff's allegations do in reality exist. We consider this not a question involving a mere technicality, but a substantial right guarantied to the defendant, because the company is protected as a citizen by the spirit, if not the letter, of our organic law. It might be that the death of intestate occurred immediately after the alleged injury, or after the lapse of days or months, and without notice to the defendant of the claim growing out of it. The plaintiff avers that he was rightfully on the train run by the defendant, but it does not appear whether he had purchased a ticket, and was there under a contract of carriage, or whether by a permit of some kind he was being transported without charge. As...