Allen v. Carolina Central Railway Co.

Practice — Pleading—■Demurrer—Motion to Make Pleading Definite. 1. The purpose of The Code practice being to have controversies tried on their true merits and without unnecessary costs and delay, it provides for amending and perfecting the pleadings on motion in apt time addressed to the discretion of the court, or by the court ex mero moiu. 2. Where a complaint in an action for negligence was defective in not definitely and sufficiently setting out the negligence complained of, objection thereto should have been taken, not by demurrer, but by motion to have the plaintiff make his complaint more definite.

Civil aotioN, heard on complaint and demurrer, before Norwood, J., at October,Term, 1896, of MecicleNbueg Superior Court. The complaint was as follows: “The plaintiff complains and alleges: “First — That the defendant, at the time hereinafter stated, was and still is a corporation duly created and organized under the law, and was and still is a common carrier of goods, wares, merchandise, and passengers, and operated a railroad between the city of Charlotte, North Carolina, and the city of Wilmington, in said State, and used for this purpose railroad tracks, side tracks, engines, cars, &c., for the necessary conduct of its business as a railroad. “Second — That, on or about the 16th day of June, 1893, the plaintiff, while in the employ of the defendant, was injured by a brake- on one of the cars of the defendant breaking. That the break was defective, which was unknown to the plaintiff, which, by reasonable care, could have been discovered by the defendant. That the plaintiff served the defendant as a coupler and shifter, and was ordered by the conductor to put on the brake, which he did, in a careful and cautious manner. That the defendant, by reasonable diligence, might have known of the defectiveness and unsound ness of the brake. “Third — That the plaintiff used due care and caution in putting on the brakes, which he was ordered to do by his superior and boss, the conductor of the train, whom he was bound to obey. That upon his putting on the brake it broke, throwing him violently to the ground below. That he was knocked senseless, and was and is permanently injured. That his injuries received were no fault of his, but on account of the imperfect machinery, carelessness and negligence of the defendant. That by reason of the negligence of the defendant, as aforesaid, plaintiff was damaged five thousand ($5,000) dollars. “Wherefore, plaintiff demands judgment against the defendant: “1. Eor the sum of $5,000. “2. Eor cost of action.” The demurrer was as follows: “The defendant demurs to the complaint filed in this action, and for cause of demurrer says that the negligence alleged is not sufficiently and legally set out.” The demurrer was overruled with leave to answer, but defendant appealed.