{ "id": 8655387, "name": "GEORGE E. CHERRY, Jr., v. ATLANTIC COAST LINE RAILROAD COMPANY", "name_abbreviation": "Cherry v. Atlantic Coast Line Railroad", "decision_date": "1923-03-07", "docket_number": "", "first_page": "90", "last_page": "93", "citations": [ { "type": "official", "cite": "185 N.C. 90" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "182 N. C., 97", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655361 ], "opinion_index": 0, "case_paths": [ "/nc/182/0097-01" ] }, { "cite": "76 N. C., 292", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8693084 ], "opinion_index": 0, "case_paths": [ "/nc/76/0292-01" ] }, { "cite": "144 N. C., 394", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "4 Neb., 150", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 2865054 ], "opinion_index": 0, "case_paths": [ "/neb/4/0150-01" ] }, { "cite": "136 N. C., 489", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660984 ], "opinion_index": 0, "case_paths": [ "/nc/136/0489-01" ] }, { "cite": "147 N. C., 142", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269185 ], "opinion_index": 0, "case_paths": [ "/nc/147/0142-01" ] }, { "cite": "165 N. C., 600", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660614 ], "opinion_index": 0, "case_paths": [ "/nc/165/0600-01" ] }, { "cite": "152 N. C., 316", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271006 ], "opinion_index": 0, "case_paths": [ "/nc/152/0316-01" ] }, { "cite": "151 N. C., 345", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654806 ], "opinion_index": 0, "case_paths": [ "/nc/151/0345-01" ] }, { "cite": "170 N. C., 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658417 ], "opinion_index": 0, "case_paths": [ "/nc/170/0236-01" ] }, { "cite": "144 N. C., 257", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659575 ], "opinion_index": 0, "case_paths": [ "/nc/144/0257-01" ] }, { "cite": "85 N. C., 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11277364 ], "opinion_index": 0, "case_paths": [ "/nc/85/0205-01" ] } ], "analysis": { "cardinality": 460, "char_count": 7981, "ocr_confidence": 0.518, "pagerank": { "raw": 1.8258001464992802e-07, "percentile": 0.7199896596288046 }, "sha256": "a9040647ab016918043564129f036c82272a6d8798b6888a7922ee3bf0ece1d5", "simhash": "1:b21fd6eed956d2f1", "word_count": 1375 }, "last_updated": "2023-07-14T20:46:28.944101+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "GEORGE E. CHERRY, Jr., v. ATLANTIC COAST LINE RAILROAD COMPANY." ], "opinions": [ { "text": "Adams, J.\nGenerally speaking, a demurrer may not be entertained after the answer is filed unless by leave of court the answer is withdrawn, because a defendant is not permitted to answer and demur to one cause of action at the same time. Finch v. Baskerville, 85 N. C., 205; Moseley v. Johnson, 144 N. C., 257; Rosenbacker v. Martin, 170 N. C., 236. But tbis ruling does not apply wben objection is entered to the jurisdiction of the court or to the complaint on the ground tbat it does not state facts sufficient to constitute a cause of action. C. S., 518, and cases cited.\nAfter the jury bad been impaneled in this case, and presumably after the pleadings bad been read, the defendant demurred ore tenus to the complaint and moved to dismiss the action for the assigned reason that the complaint does not state a cause of action. Thereby the defendant admitted the truth of the allegations in the complaint, which must be construed in the aspect most favorable to the plaintiff. Quarry Co. v. Construction Co., 151 N. C., 345; Wilcox v. R. R., 152 N. C., 316; Kendall v. Highway Com., 165 N. C., 600; McGehee v. R. R., 147 N. C., 142; Green v. Tel. Co., 136 N. C., 489:\nWhat, then, are the plaintiffs allegations ? He says that be was nine years of age when be was injured; that while be was at the defendant\u2019s station in the town of Greenville be was requested by the defendant\u2019s station agent to mail a letter on one of the defendant\u2019s trains which at that time bad just started to move from the depot, or was moving slowly; that the letter was addressed to one of the defendant\u2019s officers in the city of Wilmington, and related to the defendant\u2019s business; that the plaintiff mailed the letter as requested, and while returning along a path at the \u201cedge of the roadway\u201d stumbled over a pile of coal cinders which the defendant bad left in the roadway in violation of a town ordinance and was injured by the passing train. the principal alleged acts of negligence are the breach of the town ordinance and the negligent employment by the defendant of an immature and inexperienced youth to go upon a dangerous mission. There are other allegations in the complaint to which we need not more particularly refer. the question is whether the allegations state any cause of action.\nWhile the complaint is not specific or definite as to the' proximate cause of the injury, and as to other matters which may be material on the trial, we cannot hold as a matter of law that it is fatally defective by reason of vagueness, or uncertainty, for circumstances are alleged which, if established at the trial by a preponderance of the evidence in-accordance with the plaintiff\u2019s contentions, will entitle the plaintiff to relief, and this is one of the tests of the sufficiency of the alleged cause of action.\nIt is contended that the cinders were not in the street, but in the roadway. \u201cRoadway\u201d means a road, and the word \u201croad,\u201d while generally applied to highways, has a broader generic sense, including street as well as highway. Web. In. Dic.; People v. Comrs., 4 Neb., 150; Dubuque County v. Dubuque Company, 4 G. Greene, 1, 14, 15; In re Sharett's Road, 8 Pa. (8 Barr), 89. Whether the defendant piled cinders in the street in breach of a town ordinance is a matter of proof.\nUpon the argument here reference was made to the denials and allegations in the answer, but the answer cannot be invoked in aid of the demurrer. In Wood v. Kincaid, 144 N. C., 394, the Court said: \u201cA demurrer is an objection that the pleading against which it is directed is insufficient in law to support the action or defense, and that the demurrant should not, therefore, be required to further plead. It is not its office to set out facts, but it must stand or fall by the facts as alleged in the opposing pleadings, and it can raise only questions of law as to their sufficiency. It is a fundamental rule of law that a demurrer will only lie for defects which appear upon the face of the alleged defective pleading, and extraneous or collateral facts stated in the demurrer cannot be considered in deciding upon its validity. A demurrer averring any fact not stated in the pleading which is attacked, commonly called a 'speaking demurrer,\u2019 is never allowable.\u201d Von Glahn v. De Rosset, 76 N. C., 292; Godwin v. Gardner, 182 N. C., 97; Trust Co. v. Wilson, ibid., 166; S. v. Scott, ibid., 870.\nThe defendant argues, also, that the plaintiff was guilty of contributory negligence which bars bis recovery. It will be noted that no evidence was offered at the trial, and that the demurrer relates only to the allegations in the complaint. The plaintiff alleges that on the occasion of the injury be was an inexperienced boy and did not appreciate the risks and dangers incident to. mailing the letter; and, moreover, that be was injured, not by reason of bis effort to reach the train, but tbrougb the negligence of the defendant in obstructing the roadway. Under these circumstances the question whether the plaintiff was negligent is to be determined by the jury upon proof offered at the trial. C. S., 523.\nOf course we express no opinion on the merits of the action, but merely bold that the demurrer should have been overruled. the judgment is\nReversed.", "type": "majority", "author": "Adams, J." } ], "attorneys": [ "F. C. Harding, F. Q. James & Son, and T). M. ClcCric for plaintiff.", "Sicimier & Whedbee for defendant." ], "corrections": "", "head_matter": "GEORGE E. CHERRY, Jr., v. ATLANTIC COAST LINE RAILROAD COMPANY.\n(Filed 7 March, 1923.)\n1. Demurrer \u2014 Pleadings\u2014Answer\u2014Jurisdiction\u2014Statutes.\nA demurrer to the jurisdiction of the court or that the complaint does-not state facts sufficient to constitute a cause of action, may be entered after answer filed, and the principle upon which it is ordinarily required that the answer be first withdrawn with leave of the court before demurring to the complaint, does not apply. C. S., 518.\n2. Demurrer \u2014 Pleadings \u2014 Answer\u2014Negligence\u2014Actions\u2014Cause of Action \u2014 Proximate Cause.\nThe complaint in an action against a railroad company to recover damages for a personal injury, alleged that the plaintiff, nine years of age, at the request of defendant\u2019s station agent, took a letter relating to defendant\u2019s business, to mail it on a train; and after having done so, and upon returning, stumbled over a pile of cinders that had been left on the edge of the \u201croadway\u201d by the defendant, in violation of a city ordinance, and was consequently injured by a passing train: Held, sufficient to take the case to the jury.\n3. Municipal Corporations \u2014 Cities and Towns \u2014 \u201cRoadway\u201d\u2014Streets and Sidewalks \u2014 Words and Phrases.\nWhere a city ordinance prohibits a railroad company from leaving cinders piled on its street, an allegation that the railroad had left a pile of cinders on the \u201cedge of its roadway,\u201d in violation of the ordinance, is sufficient, when pertinent to the inquiry, to be submitted to the jury upon the question whether the railroad company had violated the ordinance in having left the cinders piled upon the \u201cstreet.\u201d\n4. Demurrer \u2014 Pleadings\u2014Answer\u2014Speaking Demurrer.\nWhere the defendant, after filing answer, has demurred to the sufficiency of the complaint to state a cause of action, the allegations of the answer may not be invoked as an aid to the demurrer, since a \u201cspeaking demurrer\u201d is not permissible, and the allegations of the complaint, regarding them in the light favorable to the plaintiff, will alone be considered.\n5. Demurrer \u2014 Evidence \u2014 Pleadings\u2014Contributory Negligence \u2014 Burden of Proof.\nContributory negligence must generally be shown by the defendant pleading it, and a demurrer to the complaint will be overruled when the defendant\u2019s negligence is sufficiently alleged and there is no allegation of any matter from which contributory negligence may be legally inferred.\nAppeal by plaintiff from Calvert, J., at September Term, 1922, of Pitt.\nAfter tbe jury bad been impaneled, tbe defendant demurred ore terms to tbe complaint, and from a judgment sustaining tbe demurrer and dismissing tbe action tbe plaintiff appealed.\nF. C. Harding, F. Q. James & Son, and T). M. ClcCric for plaintiff.\nSicimier & Whedbee for defendant." }, "file_name": "0090-01", "first_page_order": 156, "last_page_order": 159 }