Forsyth County NcArchives Court.....Roanoke & Southern RR, Susan Fulp Adm Of Wesley Fulp V. 1894
************************************************
Copyright.  All rights reserved.
http://www.usgwarchives.net/copyright.htm
http://www.usgwarchives.net/nc/ncfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Connie Ardrey n/a December 8, 2009, 6:06 pm

Source: North Carolina Reports February Term
Written: 1894

Susan M. Fulp, Administratrix of J. Wesley Fulp v. Roanoke & Southern Railway 
Company

Action for Damages for Injury Resulting in Death-Negligence-Failure to Give 
Signal of Approach of Train-Person Walking on Track

Where, in an action against a railroad company for negligently causing the 
death of plaintiff's intestate, the complaint alleges no other negligence than 
the failure of the engineer to give any notice, by whistle, bell or otherwise, 
of the approach of the train to intestate, who was walking on the track and 
was run over and killed by the locomotive, no sufficient cause of action is 
stated.

Action, heard before Winston, J., at December Term, 1893, of Forsyth.

The plaintiff sought to recover damages for the negligent killing of her 
intestate by the defendant. The only allegation of negligence stated in the 
complaint was as follows:

"That on the ... day of ...., 18 ..., the deceased, the plaintiff's intestate, 
was going to his home, and walking upon the defendant's track; he was, by the 
negligence of the defendant and its servants, in that it failed to give any 
notice of its approach by whistle or bell or otherwise, run over by 
defendant's locomotive and killed without any fault of plaintiff's intestate."

When the case was called for hearing the defendant moved to dismiss the 
complaint on the ground that the same did not state facts sufficient to 
constitute a cause of action, as an oral demurrer. The demurrer was sustained, 
and plaintiff appealed.

Mr. J.S. Grogan for plaintiff (appellant)
No counsel contra

[NC Supreme Court]
Shepherd, C.J. The demurrer was properly sustained, as the only negligence is 
that the defendant failed to give any notice of the approach of its train "by 
whistle, bell or otherwise" to the intestate, who was walking on its track. We 
know of no law which imposes a liability upon a railroad company upon such 
meager allegations.

Affirmed

File at: http://files.usgwarchives.net/nc/forsyth/court/roanokes1240wl.txt

This file has been created by a form at http://www.poppet.org/ncfiles/

File size: 2.5 Kb