{
  "id": 8612816,
  "name": "GRAY WHITLOW, by His Next Friend, J. C. WHITLOW, v. SOUTHERN RAILWAY COMPANY and A. M. KIMBROUGH",
  "name_abbreviation": "Whitlow ex rel. Whitlow v. Southern Railway Co.",
  "decision_date": "1940-05-08",
  "docket_number": "",
  "first_page": "558",
  "last_page": "559",
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      "cite": "217 N.C. 558"
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  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "214 N. C., 570",
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      "reporter": "N.C.",
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        8632050
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    {
      "cite": "214 N. C., 196",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8629446
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      "case_paths": [
        "/nc/214/0196-01"
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  "last_updated": "2023-07-14T22:38:29.672243+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "GRAY WHITLOW, by His Next Friend, J. C. WHITLOW, v. SOUTHERN RAILWAY COMPANY and A. M. KIMBROUGH."
    ],
    "opinions": [
      {
        "text": "Schenck, J.\nThis is an appeal by tbe plaintiff from a judgment striking- out certain portions of tbe amended complaint in an action to-recover damages for personal injuries alleged to bave been negligently inflicted by tbe defendants upon tbe plaintiff.\nTbe original complaint alleged that tbe individual defendant, while acting in tbe scope of bis employment as station agent of tbe corporate defendant, \u201cwillfully and maliciously assaulted\u201d tbe plaintiff \u201cby firing a pistol from tbe window of tbe office of tbe said railway station, the-bullet from wbicb struck tbe infant plaintiff\u2019s left leg producing a compound fracture.\u201d\nTbe amended complaint, portions of wbicb tbe court ordered stricken out, abandoned tbe original allegation of a willful and malicious assault,, and alleged tbat tbe individual defendant, while acting in tbe scope of bis employment as station agent of tbe corporate defendant, \u201cnegligently and carelessly pointed and fired a pistol or revolver at this plaintiff from tbe open window of said depot station, the bullet from which said pistol struck the plaintiff\u2019s left leg\u201d thereby causing injury.\nThe motions of the defendants to strike, which were allowed by the court, related to allegations that the individual defendant was possessed of a nervous and irritable disposition and of a violent and ungovernable temper, all of which was known to the corporate defendant.\nWe think, and so hold, in view of the fact that the alleged cause of action is now bottomed on negligence, rather than on a willful and malicious assault, the motions were properly allowed as to those allegations relating to the individual defendant\u2019s irritable disposition and violent and ungovernable temper, but were improperly allowed as to those allegations relating to said defendant\u2019s nervous disposition, or nervousness. Irritability and violent and ungovernable temper could hardly be a contributing factor to negligence, while nervousness may readily be a concomitant element thereof, and the retaining of a person equipped with firearms with which to guard the railway station of which he was in charge, when such person was known to possess a nervous disposition, might constitute negligence on the part of the railway company.\nWe therefore conclude that the judgment of the Superior Court should be affirmed in so far as it relates to the words \u201cand irritable person; and he was possessed of a dangerous, violent and ungovernable temper,\u201d in paragraph 11 of the amended complaint, and reversed in all other respects relating to this paragraph; and affirmed in so far as it relates to paragraph 12 of said complaint; and affirmed in so far as it relates to the words \u201cand possessed of a dangerous and violent temper\u201d in paragraph 13 (d) of said complaint, and reversed in all other respects relating to this paragraph.\nWe also conclude that the motions to strike were likewise properly allowed in so far as they relate to the words \u201cwhen he (defendant Kim-brough) knew, or should have known that to point a pistol, loaded or unloaded, at any person was a direct violation of section 4216 of the Code of the State of North Carolina\u201d in paragraph 13 (c), since the knowledge of the unlawfulness of the act of pointing a pistol at another is not an essential element of the crime delineated by the statute.\n\u201cOn a motion to strike out, the test of relevancy of a pleading is the right of the pleader to present the facts to which the allegation relates in the evidence upon the trial.\u201d Trust Co. v. Dunlop, 214 N. C., 196, and cases there cited, and Duke v. Children\u2019s Commission, 214 N. C., 570. When this test is applied to the judgment under consideration, we think it should be affirmed in part and reversed in part.\nIn those respects indicated the judgment of the Superior Court is affirmed, and in all other respects it is reversed and the case is remanded that the judgment may be modified in accord with this opinion.\nModified and affirmed.",
        "type": "majority",
        "author": "Schenck, J."
      }
    ],
    "attorneys": [
      "Hiram P. Whiiacre and J. G. Newell for plaintiff, appellant.",
      "W. T. Joyner, John M. Robinson and Hunter M. Jones for Southern Railway Company, defendant, appellee.",
      "Grant \u25a0& Grant for A. M. Kimbrough, defendant, appellee."
    ],
    "corrections": "",
    "head_matter": "GRAY WHITLOW, by His Next Friend, J. C. WHITLOW, v. SOUTHERN RAILWAY COMPANY and A. M. KIMBROUGH.\n(Filed 8 May, 1940.)\nPleadings \u00a7 29 \u2014 In action based on negligence, allegations of facts not constituting contributing factors to negligence are properly stricken on motion.\nTbe amended complaint alleged that the individual defendant negligently and carelessly pointed and fired a pistol at plaintiff, resulting in injury, and that the individual defendant was acting within the scope of his employment by the corporate defendant. Held: Allegations that the individual defendant knew or should have known that to point a pistol at any person was in direct violation of C. S., 4216, was properly stricken upon motion, since knowledge of the unlawfulness of such act is not an essential element of the crime delineated by the statute, and allegations that the individual defendant possessed an irritable disposition and a violent and ungovernable temper were properly stricken upon motion, since such facts cannot be contributing factors to negligence, but allegations that the individual defendant was of a nervous disposition were improperly stricken, since nervousness may readily be a concomitant element of negligence, the test of relevancy being the right of the plaintiff to present evidence in support of the allegations upon the trial.\nAppeal by plaintiff from Grady, Emergency Judge, at December-Term, 1939, Of MECKLENBURG.\nHiram P. Whiiacre and J. G. Newell for plaintiff, appellant.\nW. T. Joyner, John M. Robinson and Hunter M. Jones for Southern Railway Company, defendant, appellee.\nGrant \u25a0& Grant for A. M. Kimbrough, defendant, appellee."
  },
  "file_name": "0558-01",
  "first_page_order": 624,
  "last_page_order": 625
}