Smith v. Sink
| Decision Date | 16 December 1936 |
| Docket Number | No. 667.,667. |
| Citation | 210 N.C. 816,188 S.E. 631 |
| Parties | SMITH . v. SINK et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Davidson County; J. A. Rousseau, Judge.
Action by Bertha Smith, administratrix of the estate of Clarence Smith, deceased, against J. Carl Sink and the Winston-Salem Southbound Railway Company. From a judgment overruling defendant corporation's demurrer to the complaint, defendant corporation appeals.
Affirmed.
Craige & Craige, of Salisbury, and Phillips & Bower, of Lexington, for appellant.
T. S. Wall, Jr., and P. V. Critcher, both of Lexington, for appellee.
This is an appeal by the corporate defendant from judgment overruling its demurrer grounded upon the contention that the complaint does not state facts sufficient to constitute a cause of action against it, since it appears from the complaint that the negligence of the defendant Sink was the sole proximate cause of the death of the plaintiff's intestate.
The complaint alleges that on January 12, 1936, the plaintiff's intestate met his death while riding as a guest in an automobile owned and driven by the defendant Sink, that the automobile was driven in a negligent manner in that it was driven at an excessive rate of speed, and without keeping a proper lookout, and while the driver was intoxicated, and that as a direct and proximate result of such negligence the automobile was driven into the side rail at the entrance of a bridge over the corporate defendant's tracks, causing a piece of timber from the bridge to enter the moving automobile and strike the intestate with great force, resulting in his death.
The complaint, after alleging the duty of the corporate defendant to properly construct and maintain the bridge on which the intestate received his mortal wound, further alleges that the corporate defendant was negligent, inter alia:
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