Montgomery v. East Tenn., Va. & Ga. Railway Co.

Lumpkin, Justice. The action of Montgomery against the railway company was dismissed on the ground that no cause of action was set forth in the declaration, and the plaintiff excepted. He further excepted to the consideration.by the court of the motion to dismiss, over his objection that it was not made at the appearance term. The contents of the declaration are set forth, in substance, by the reporter. It has been repeatedly ruled that a motion to dismiss an action may be made and sustained at any term, if the declaration fails to set forth any cause of action whatever. Under the facts alleged, we have no difficulty in holding that the court was right in dismissing the case. The obstruction of the public street in the manner alleged was, undoubtedly, an unlawful act on the part of the company, but it was not malum in se. Neither was it an act which would reasonably or probably cause an 335 injury to the plaintiff in the manner set forth. Indeed,, such a consequence was nothing more than a remote possibility, and it therefore falls within the domain of pure accident, for which the company cannot be held responsible. Judgment affirmed.