No. 96.

74 S.E.2d 706 (1953)

237 N.C. 313


Supreme Court of North Carolina.

March 4, 1953.

Attorney(s) appearing for the Case

A. E. Leake and Calvin R. Edney, Marshall, for plaintiff appellant.

Meekins, Packer & Roberts, Asheville, for defendants appellees.

WINBORNE, Justice.

The challenge to the ruling of the court below in sustaining the demurrer filed, as set forth above, presents the question as to whether or not the facts alleged in the complaint of plaintiff are sufficient to constitute a cause of action against the demurrants on actionable negligence.

For this purpose the truth of the allegations contained in the complaint are admitted, and "ordinarily relevant inferences of fact, necessarily deducible therefrom, are also admitted, but the principle does not extend to the admissions of conclusions or inferences of law". Ballinger v. Thomas, 195 N.C. 517, 142 S.E. 761, 763. See also McLaney v. Anchor Motor Freight, Inc., 236 N.C. 714, 74 S.E.2d 36, and cases cited.

Also it is provided by statute, G.S. § 1-151 that "In the construction of a pleading for the purpose of determining its effect its allegations shall be liberally construed with a view to substantial justice between the parties". And decisions of this Court interpreting and applying the provisions of this statute require that every reasonable intendment must be in favor of the pleader. The pleading must be fatally defective before it will be rejected as insufficient. See Commerce Ins. Co. v. McCraw, 215 N.C. 105, 1 S.E.2d 369, and cases there cited.

In the light of the provisions of the statute, as so interpreted and applied, admitting the truth of the facts alleged in the complaint, this Court is constrained to conclude as a matter of law that the allegations in respect of the defendants, the demurrants, are fatally defective upon the ground on which the demurrer is predicated, that is, it affirmatively appears upon the face of the complaint that the injury and damages of which plaintiff complains were, as stated by Stacy, C. J., in Smith v. Sink, 211 N.C. 725, 192 S.E. 108, 109, "independently and proximately produced by the wrongful act, neglect, or default of an outside agency or responsible third person" to wit, the defendant, Mrs. Nellie Bowls. See McLaney v. Anchor Motor Freight, Inc., supra, where the principle was recently applied, and supporting authorities cited. While it is true that the statute G. S. § 20-130.1 declares that it shall be unlawful for any person (with certain exception) to drive upon the highways of this State any vehicle displaying red lights visible in front of said vehicle, it may be fairly assumed that the General Assembly intended the statute to apply to vehicles operated at the time when lights are required, that is, "during the period from a half hour after sunset to a half hour before sunrise, and at any other time when there is not sufficient light to render clearly discernible any person on the highway at a distance of two hundred feet ahead". G.S. § 20-129, as amended by 1947 Session Laws Chap. 526. See Thomas v. Thurston Motor Lines, 230 N.C. 122, 52 S.E.2d 377.

But be that as it may, if it be conceded that the allegations of the complaint set forth facts constituting negligence on the part of the defendants, demurrants, the allegations fail to disclose proximate causal relation between the red lights on the front of the motor vehicle of defendants, demurrants, as alleged, and the act of Mrs. Bowls, acting independently of any act on the part of defendants, demurrants, in permitting her Ford automobile to ram the rear of plaintiff's automobile. There was no contact between the motor vehicle of defendants, demurrants, and that of plaintiff. And plaintiff was not caused to leave the road. She just instinctively slowed the speed of her automobile. And Mrs. Bowls, following too closely, did not stop her automobile in time to avoid a collision.

The factual situation in McLaney v. Anchor Motor Freight, Inc., supra, is similar to the case in hand. Demurrer was sustained there. And so it must be here.



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