Davis v. Norfolk Southern Railroad

157 S.E. 11, 200 N.C. 345, 1931 N.C. LEXIS 324

• Court: Supreme Court of North Carolina
• Decided: February 18, 1931
• Status: Published

Opinion

Stacy, C. J.,

after stating the case: As suit was not brought against H. A. Lewis within one year after the death of plaintiff’s intestate, the demurrer interposed by him was properly sustained. Tieffenbrun v. Flannery, 198 N. C., 397, 151 S. E., 857. An action for wrongful death, brought under C. S., 160, is required to be instituted against the person or corporation liable therefor within one year after such death. Bennett v. R. R., 159 N. C., 345, 74 S. E., 883.

That an action was brought against the Norfolk Southern Railroad Company within the time prescribed, and judgment of voluntary non-suit entered therein, and the present action commenced against the Norfolk-Southern Railroad Company and H. A. Lewis within one year following said nonsuit, but after the lapse of more than a year from the death of plaintiff’s intestate, while sufficient to save the case as against the corporate defendant (Trull v. R. R., 151 N. C., 545, 66 S. E., 586), will not avail the plaintiff as against the demurrer of the individual defendant who was not a party to the first suit. C. S., 415. See Link v. R. R., 198 N. C., 78, 150 S. E., 672; Murray v. R. R., 196 N. C., 695, 146 S. E., 801; Capps v. R. R., 183 N. C., 181, 111 S. E., 533, and Belch v. R. R., 176 N. C., 22, 96 S. E., 640; also Motsinger v. Hauser, 195 N. C., 483, 142 S. E., 589.

Affirmed.