George v. Atlanta & C. A. L. Ry. Co

• Decision Date: 29 April 1936
• Docket Number: No. 534.,534.
• Citation: 185 S.E. 431,210 N.C. 58
• Court: North Carolina Supreme Court
• Parties: GEORGE. v. ATLANTA & C. A. L. RY. CO. et al.

185 S.E. 431

210 N.C. 58

GEORGE.

v.ATLANTA & C. A. L. RY. CO. et al.

No. 534.

Supreme Court of North Carolina.

April 29, 1936.

Appeal from Superior Court, Gaston County; Finley, Emergency Judge.

Action by Pearl M. George, administratrix of John J. George, deceased, against the Atlanta & Charlotte Air Line Railway Company, the Southern Railway Company, and another. A demurrer by defendants named was sustained, and plaintiff appeals.

Affirmed.

Action for wrongful death alleged to have resulted from a collision between an automobile in which the plaintiff's intestate was riding and a passenger train of defendants railway companies.

Plaintiff alleges that the death of her intestate was caused by the joint negligence of defendants railway companies and George B. Sorrells, driver of the automobile. Defendants railway companies demurred to the amended complaint, and from judgment sustaining the demurrer and dismissing the action as to the corporate defendants, the plaintiff appealed.

S. R. McClurd, of Washington, D. C, E. R. Warren, of Gastonia, and Tillett, Tillett & Kennedy, of Charlotte, for appellant.

Clyde R. Hoey, of Shelby, Geo. B. Mason, of Gastonia, and Richard C. Kelly, of Greensboro, for appellees.

DEVIN, Justice.

The facts alleged in the complaint sufficiently appear in the report of this case on a former appeal (George v. Atlanta & C. A. L. Ry. Co., 207 N.C. 457, 177 S.E. 324) and need not be restated.

The chronology of the case as shown by the record before us seems to be as follows: The death of plaintiff's intestate is alleged to have occurred September 16, 1932. This action was instituted August 24, 1933. Demurrer of the corporate defendants to the original complaint was heard at July term, 1934, of Gaston superior court and was sustained. Upon appeal to this court, fall term, 1934, the ruling of the superior court was affirmed (opinion filed December 12, 1934). Thereafter at July term, 1935, plaintiff was granted leave to amend her complaint and the amendment to the complaint was filed August 9, 1935.

The decision on the former appeal in this case was based on the authority of Ballinger v. Thomas and Southern Railway, 195 N.C. 517, 142 S.E. 761, and that decision must be held to be controlling. It has become the law of the case, and its correctness is not now open to debate.

The result of that decision was the holding that the plaintiff had not stated a cause of action against the railway companies. It was not a defective statement of a good cause of action; it did not state facts sufficient to constitute a cause of action.

It follows therefore that an amendment to the complaint, if it be good and available, would relegate the plaintiff to the position of having thereby for the first...