Vivian v. Seashore Transp. Co.

• Decision Date: 27 March 1929
• Docket Number: 212.
• Citation: 147 S.E. 298,196 N.C. 774
• Parties: VIVIAN v. SEASHORE TRANSP. CO. et al.
• Court: North Carolina Supreme Court

147 S.E. 298

196 N.C. 774

VIVIAN v. SEASHORE TRANSP. CO. et al.

No. 212.

Supreme Court of North Carolina

March 27, 1929

Appeal from Superior Court, Lenoir County; Henry A. Grady, Judge.

Action by Arthur Vivian against the Seashore Transportation Company and the Dover-Southbound Railroad Company. From an order overruling its demurrer to the complaint and amended complaint, the Railroad Company appeals. Affirmed.

In passenger's action for injuries against bus company and railroad company, railroad's demurrer to bus company's answer, alleging railroad's negligence, but seeking no affirmative relief, held not well taken.

The plaintiff alleged that on or about the 20th day of July 1927, he was a passenger on a bus owned and operated by the defendant Seashore Transportation Company, and traveling from New Bern to Kinston; that said bus was equipped with faulty and defective brakes, and operated in a careless, negligent and reckless manner, and at an unlawful rate of speed; that when said bus approached Phillips crossing it failed to stop as required by law, but was carelessly and negligently driven into a train owned and operated by the defendant Dover-Southbound Railroad Company, and that as a result of said collision plaintiff sustained serious and permanent injuries. The defendant transportation company made a motion in the cause asking that the railroad company be made a party to the suit. The trial judge entered an order making the railroad company a party defendant, and summons was duly issued and served upon said defendant.

The answer of the transportation company denied that it was guilty of any negligence, and as a further defense alleged that the collision between the bus and the train, resulting in injury to the plaintiff, was caused by the negligence of the railroad company, for that said company permitted obstructions, bushes, and weeds to grow upon its right of way near said crossing, so as to obscure the view of those approaching its track, and furthermore that at the time of the collision the said defendant failed to keep a proper lookout or give any signal as the train approached said crossing, and that "any injury to the plaintiff *** is due directly and proximately to the carelessness of the defendant Dover-Southbound Railroad Company."

Thereupon the plaintiff filed an amended complaint, adopting all the allegations in the original complaint against the transportation company, and...