Forney v. Black Mountain Railroad

74 S.E. 884, 159 N.C. 157, 1912 N.C. LEXIS 248

• Court: Supreme Court of North Carolina
• Decided: May 8, 1912
• Status: Published

Opinion

Clasrk, C. J.

This is an appeal from a refusal of a motion to remove the cause from Mitchell County to Yancey. The plaintiff is a resident of Yancey County. The defendant is a railroad company, having its principal place of business in Yancey, with its line partly in Mitchell and partly in Yancey. The cause of action is a personal injury which occurred in Yancey County.

This case falls directly under the proviso in Eevisal, 424, that “an action against a railroad shall be tried either in the county where the cause of action arose or in the county where the plaintiff resided at the time the cause of action arose,” or “in some county adjoining the county in which the cause of action arose,” subject to the power of the court to change the place of trial. This application for the change of venue was not made on the ground of the convenience of witnesses or on account of local prejudice, which are matters within the irreviewable discretion of the presiding judge, but upon the ground that the proper venue was in Yancey County. Mitchell adjoins Yancey, and under the proviso in Revisal, 424, above quoted, the plaintiff had his election to bring the action either in Yancey or in any adjoining county. In Propst v. R. R., 139 N. C., 397, the proviso was construed and it was held that this section of the Re-visal applied to all railroads, both domestic and foreign.

Under the preceding sections 419 (1) an action against a railroad for setting out fire must be brought in the county where the land lies. Perry v. R. R., 153 N. C., 117. Section 424 provides for venue “in all other cases,” with the proviso as to railroads, which must be construed as applying to all cases not provided for in the preceding sections. Propst v. R. R., 139 N. C., 399.

Affirmed.