Martin v. Seaboard Air Line Railway Co.

61 S.E. 625, 148 N.C. 259, 1908 N.C. LEXIS 183

• Court: Supreme Court of North Carolina
• Decided: May 29, 1908
• Status: Published

Opinion

CoNNOR., J.,

after stating the facts: While it must be conceded that a number of alleged negligent acts and omissions are made against each defendant, for which the other is in nowise responsible, the collision resulting in the injury — that is, the impact — was caused by the engine and street car coming together at the crossing. The plaintiff alleges, among other omissions of duty, the failure of the two corporations to establish and maintain rules regulating their conduct in approaching the crossing. This duty, if any existed, was joint. One party could not establish joint rules without the assent of the other. If, as alleged, and for the purpose of this motion taken to be true, a joint duty was imposed upon defendants, and they failed to discharge such duty, they would each be guilty of negligence, and if such, negligence was the proximate cause of the collision they would both be liable. If, on the contrary, there was a common breach of duty, and, notwithstanding such breach, the conduct of one, either by positive action or omission to act at and before the collision, was the proximate cause of the injury, the other might be acquitted of liability. These and many other questions discussed in the briefs are interesting and not easy of solution. We deem it unwise to discuss them at this time. They may or may not arise upon the verdict. It is ahvays best to avoid discussing questions not presented by the verdict of the jury, found by a referee or admitted by demurrer. It is urged, and probably will be found true Upon the trial, that it will be difficult to form issues or give instructions to the jury presenting clearly each and every phase of the litigation. This is one of the objections to the Code system of procedure, but it has many compensating advantages over the common-law systems in which the jury could find only a general verdict. Issues may, by a judge with learning and experience, aided by counsel equally so, be so drawn that all controverted questions of fact will be presented and settled, enabling the court to declare the law and the relative rights and liabilities of the parties.. We do not think that a demurrer could be sustained if the plaintiff had sued the defendants jointly. It is held that, in an action for personal injuries, the corporation may be joined with its employee. It may be and frequently is the case that' the allegations include negligence of the former in regard to defects of. the machinery, and the latter in regard to the manner in which it is operated. In such cases the court submits issues directed to the several phases of the pleadings, and' for greater certainty may in its discretion submit questions to the jury. Clark’s Code, 390; Quarles v. Jenkins, 98 N. C., 258. Without -intimating any opinion in regard to the merits of the controversy or the liability of either of the defendants, we are of the opinion that there is, no error in the order of consolidation. The fact that one of the defendants had not answered is immaterial. The order is based upon the allegations in the complaints. There is

No Error.