Whitley v. Southern Ry. Co

• Decision Date: 24 November 1896
• Citation: 119 N.C. 724,25 S.E. 1018
• Court: North Carolina Supreme Court
• Parties: WHITLEY v. SOUTHERN RY. CO.

25 S.E. 1018

119 N.C. 724

WHITLEY

v.SOUTHERN RY. CO.

Supreme Court of North Carolina.

Nov. 24, 1896.

Dismissal—Waiver OF Right to—Defective

Complaint.

A defendant is not entitled to a dismissal, on the ground that the complaint contains only a statement of a defective cause of action, after he has filed an answer denying its allegations, and pleadipg an affirmative defense, showing that he understands the nature of the claim sued on.

Appeal from superior court, Cabarrus county; Greene, Judge.

Action by William Whitley against the Southern Railway Company. Judgment dismissing the action, and plaintiff appeals. Reversed.

Action heard before Greene, J., on a motion of defendant to dismiss, because the complaint contained only a statement of a defective cause of action, and the court adjudged that the cause be dismissed, and that the defendant go without day, and recover costs, and from this judgment the plaintiff appealed. The complaint is as follows: (1) Alleges defendant to be a corporation, etc., and is OFerating the North Carolina Railroad, on which are the towns of Concord and Charlotte. (2) That on said day the plaintiff's daughter, Mrs. Deaton, desiring to go and take her three small children from Concord to Charlotte, on defendant's regular passenger train, which was due and arrived at defendant's station in Con-cord about 11 a. m., the plaintiff, for the purpose of purchasing the necessary tickets, accompanied said daughter and children to the station, and the defendant agreed and undertook for hire (to wit, the sum of 75 cents, which was paid to it, and a ticket obtained for the passage or carriage of said daughter and children and their baggage, before the arrival of said train) to carry on said train, from said station in Concord to defendant's station in Charlotte, said daughter and children and their baggage, which baggage was a valise of ordinary size. (3) That upon the arrival of defendant's train at the station in Concord, and while it was stopped for passengers to get on and off, said station being then and now a regular station for that purpose, none of defendant's servants, agents, or employés aided or offered to aid said daughter or children, or either of them, to get on board defendant's train or car, or to put or help to put said baggage thereon; and thereupon the plaintiff, in the presence and view of the conductor, who was the defendant's agent, servant, or employs, and had charge of said train of cars, and after having notified said conductor of his (plaintiff's) intention to aid said daughter and children to get on board of defendant's car with said baggage, and to seat said daughter and children in said car, and, as soon as that was done, of plaintiff's purpose to get off, aided and assisted with the utmost dispatch, and without objection from said conductor or other agent, servant, or employé of defendant, said daughter and children to board and enter, with said baggage, the car in which said daughter and children were entitled to ride and have said...