In re Estate of Magie

The opinion of the court was delivered by G.I. Robinson, as administrator of the estate of Donald Rex
Magie, deceased, brought this action under the provisions of the
wrongful death act (now G.S. 1959 Supp., 60-3203), in the
district court of Barton County, against Homer James Livingston
to recover damages for the death of his intestate decedent which
occurred as a result of a collision between two motor vehicles at
intersecting highways. The appeal is from an order sustaining the
defendant's general demurrer to the plaintiff's evidence and from
an order overruling the plaintiff's motion for a new trial. No questions respecting the sufficiency of the pleadings are
involved. Hence, without reference to specific acts of negligence
therein set forth, all that need be said regarding them is that
the petition charges the carelessness and negligence of the
defendant (Livingston), in driving his automobile upon the
highway and into such intersection, was the sole and proximate
cause of the collision and the resulting death of Donald Rex
Magie; that the answer, after admitting the collision occurred
and the death of decedent resulted therefrom, denies that the
defendant was guilty of any negligence which was the proximate
cause of the collision or decedent's death, and charges that both
the collision and the death were caused solely and proximately by
the decedent's own negligence in driving his automobile upon the
highway and into the intersection; and that the reply in general
terms denies all allegations of the answer.