Banks v. . Joyner

Schenck, J. The defendant town of Weldon filed a demurrer ore tenus to the complaint of the plaintiff and to the further answer of the *263 original defendant upon tbe ground tbat they did not state facts sufficient to constitute a cause of action against it. If tbe complaint be considered alone it is manifestly demurrable by tbe town, since it makes no allegations of actionable negligence against tbe town; and if tbe further answer be considered alone, it is likewise demurrable by tbe town, since it fails to allege or admit any actionable negligence on tbe part of tbe intestate of tbe original defendant and, therefore, failed to allege any joint or concurrent negligence between said intestate and said town; and if tbe answer of tbe town be considered along with tbe further answer of tbe original defendant in order to supply tbe wanting allegations of actionable negligence on tbe part of tbe intestate of tbe original defendant, under tbe doctrine of aider (McIntosh’s N. C. Prae. & Proc., par. 447, pp. 458, et seq.), as argued by tbe original defendant, tbe joint and collective allegations therein contained are still demurrable by tbe town, since it appears on tbe face thereof tbat tbe negligence alleged against tbe town, namely, tbe failure to keep its streets in reasonably safe condition, was passive, and tbe causal connection between such negligence and tbe injuries to tbe plaintiff was broken by tbe interposition of an independent responsible human action, namely, tbe alleged active negligence of tbe intestate of tbe original defendant in driving bis car in a negligent and reckless manner, and such active negligence must be regarded as tbe sole proximate cause of tbe damage to tbe plaintiff. Ballinger v. Thomas, 195 N. C., 517; Baker v. R. R., 205 N. C., 329; Smith v. Monroe, ante, 41; Wharton’s Law of Negligence, Book 1, par. 134, p. 130. Tbe order removing tbe case from Wilson County to Halifax County was in accord with our practice so long as tbe town of Weldon, located in Halifax County, remained a party defendant, C. S., 464, Cecil v. High Point, 165 N. C., 431, but when tbe demurrer was sustained, and tbe action dismissed as to tbe town, tbe ground and reason for tbe removal ceased, and tbe case was properly remanded for trial to Wilson County, wherein tbe plaintiff and tbe original defendant both reside, and wherein tbe original defendant is qualified as administrator of a late resident of said county. Affirmed. Devin, J., took no part in tbe consideration or decision of this case.