Whitley v. Southern Railway Co.

Avicby, J. : The court allowed a motion to dismiss on the ground that the complaint contained only a statement of a defective cause of action. An answer h.ad been filed, which was evidently framed upon the assumption that the plaintiff had properly set forth the material averment that he had been injured by the negligence of the defendant’s servants, while on the premises of defendant accompanying a passenger, and therefore entitled to protection against negligence of servants. Daniel v. Railroad, 116 N. C. The defendant admits in the answer the contract of carriage, denies the allegation that the injury was eansed by its negligence, and sets up by way of defense the plea of contributory negligence. If it were conceded that the statement of the cause of action was insufficient, such an answer would be held, by way of aider, to have cured any such defect, though the complaint might have been held bad pleading on demurrer. Knowles v. Railroad, 102 N. C., 59. The answer shows that the defendant w'as not misled, but understood the cause of - action to be the alleged injury received by a passenger through the neglect of its servants in charge of the train. The right to dismiss for defects of this kind grows out of the fundamental principle that a declaration or complaint must be sufficient to put the party sued upon notice of the nature of the claim, so as to enable him to intelligently prepare his defense. Garrett v. Trotter, 65 N. C., 430. But this and other rights, even though guaranteed by the organic law, may be waived by con- *728 ducf inconsistent with the purpose to insist upon their enforcement or by a failure in the manner of asserting them to observe a due regard for the rights of others. Driller Co. v. Worth, 117 N. C., 515. The plaintiff has a right to demand a speedy trial upon putting the defendant on notice to prepare to meet his demand. The defendant demonstrates by the pleadings the fact that it understands the nature of the claim which it has the right to controvert. There is, therefore, no reason why either should be surprised or injured by trying the issues raised by the pleadings. We must not be understood as deciding that the complaint was in fact defective. But it is sufficient for the disposition of this appeal to hold that, conceding its insufficiency, the defect was cured by the answer. The judgment is reversed.