20 S.E.2d 299 | N.C. | 1942
This action was brought to recover damages for personal injuries sustained by plaintiff in a crossing collision in the city of Rocky Mount between an automobile operated by him and a train operated by defendant.
The defendant, before filing answer or demurrer or obtaining an extension of time to plead, moved to strike certain paragraphs of the complaint *295 as being "irrelevant, redundant and impertinent," specifically relying on C. S., 537.
The matter objectionable to the defendant was as follows:
(1) In support of his allegation of negligence in the maintenance and care of the crossing the plaintiff alleged (a) that there were three sets of tracks at this crossing, (b) that the crossing was "maintained with rough boards, large cinders or burnt coal, clinkers and dirt, and the railroad bed, beyond the end of the said boards . . . constructed and maintained of large cinders or burnt coal clinkers and coarse gravel and dirt and projecting railroad cross-ties," (c) that the view of the tracks was obstructed by a three-foot dirt bank, on which were a wire fence, several buildings, warehouses, etc., and a spur track occupied by twelve or fifteen freight cars, all of which made this a blind crossing, and (d) that the freight cars on the spur track were moved the day following the accident, this removal showing knowledge and an admission by the defendant of its negligence in thus obstructing the view at the crossing.
(2) In support of his allegation of negligence in the operation of the train involved in the collision, the plaintiff alleged (a) that certain of the employees who were operating the train were discharged, suspended, or reduced in rank following the accident, and (b) that the defendant permitted plaintiff to lie on its roadbed, unconscious, for nearly an hour, "although it had a locomotive and train upon which plaintiff could have been removed to a hospital maintained by defendant in the City of Rocky Mount."
The court struck the allegation as to the three sets of tracks, but denied the motion as to the remainder of the matter objected to.
From the order denying its motion to strike the above described paragraphs, the defendant excepted and appealed. The plaintiff contends that it would be improper for the court to consider the relevancy of his allegations on the defendant's motion to strike, but that this can and should be postponed until plaintiff introduces evidence and defendant objects thereto. This position questions the propriety of the Court's considering the merits of defendant's appeal, which is to challenge the timeliness and propriety of the appeal itself. Certainly, if the appeal is not premature or unavailable, it must be decided here on its merits.
At the threshold of investigation we are met by C. S., 638, which sets forth the orders and judgments from which an appeal will lie: "An appeal may be taken from every judicial order or determination of a *296
judge of a superior court, upon or involving a matter of law or legal inference, whether made in or out of term, which affects a substantial right claimed in any action or proceeding; or which in effect determines the action, and prevents a judgment from which an appeal might be taken; or discontinues the action, or grants or refuses a new trial." Obviously, the only apparent basis on which the defendant could appeal here, if it can appeal at all, is that the order denying its motion to strike "affects a substantial right" which it claims in the action. Ordinarily, it is only under such circumstances that an appeal will lie from an order other than a final judgment. Martin v. Flippin,
But whether a substantial right of the appellant has been affected by the order in this case — whether he has been prejudiced sufficiently to warrant this Court in considering the merits of his appeal, Pemberton v.Greensboro,
The defendant's motion to strike in the instant case was specifically based on C. S., 537, which provides that "If irrelevant or redundant matter is inserted in a pleading, it may be stricken out on motion of any person aggrieved thereby, but this motion must be made before answer or demurrer, or before an extension of time to plead is granted . . ." A motion made under this statute and within its time limits is not addressed to the discretion of the court, but, as the statute indicates, is made as a matter of right. Hosiery Mill v. Hosiery Mills, supra; Bank v. Atmore,
The relevancy of an allegation, like the relevancy of evidence, depends upon the purpose which the particular legal instrument is intended to fulfill. The purpose of an allegation in a complaint, broadly speaking, is to state a fact which, when considered with other facts, will constitute a cause of action. The purpose of evidence is to prove competent allegations. The relevancy of either depends upon its tendency to fulfill its purpose. The rules concerning the relevancy of evidence, although helpful in analogy, have no bearing on the relevancy of the allegations, for, strictly speaking, it is by the competent allegations that the relevancy of the evidence is to be judged — whether the evidence tends to prove facts properly alleged as a cause of action in the complaint. This makes the relevancy of the allegations the subject of independent inquiry, divorced, except by analogy, from the rules concerning the relevancy of evidence.
Looking at its purpose, an allegation is relevant which tends, as an element thereof, to express the cause of action on which relief is sought. (This seems to be the gist or common meeting ground of the numerous tests laid down by this Court.) Hosiery Mill v. Hosiery Mills, supra; Ellis v.Ellis, supra; Revis v. Asheville,
Redundancy in pleading does not present quite the theoretical and technical problems posed by the subject of relevancy. It would seem to include anything which is unnecessary to "a plain and concise statement of the facts constituting a cause of action," C. S., 506 (2), such as unnecessary repetition, and the detailed statement of evidential matters, however relevant the latter may be when presented upon the trial. McIntosh, North Carolina Practice and Procedure, §§ 350, 371. (McIntosh considers evidential matters in a complaint as irrelevant. It would seem more accurate to class them as redundant, but this is probably only of academic interest.)
In applying these tests to the paragraphs of plaintiff's complaint objected to by the defendant, it must be remembered that although the objectionable paragraphs appear as subdivisions of two main paragraphs, one alleging negligence in the maintenance of the crossing, and the other alleging negligence in the operation of the train, still these main paragraphs are merely parts of the whole complaint, setting up injury to the plaintiff caused by defendant's negligence in the conduct of its railroad. This is the main issue, and the relevancy of the subdivisions must be considered from this standpoint — whether they have any relation to the injury of which the plaintiff complains.
(1) (b) Although, as pointed out by defendant in its brief, the condition of the crossing played no part in the accident as it is set out in the complaint, still it cannot be said that this allegation has no relevancy to the plaintiff's claim to recovery. A railroad must maintain public crossings in a safe condition for the use of the traveling public. Raper v.R. R.,
(c) The allegations as to obstructions of the view were properly allowed to remain in the complaint. It is necessary, in stating a cause of action, to set forth the duty which the defendant owed the plaintiff, as well as the manner in which the violation of that duty proximately *299
contributed to the plaintiff's injury. McIntosh, op. cit., supra, § 359. Here, the obstructions which made this a blind crossing are a vital element of one of defendant's duties to plaintiff. Obstructions in themselves have never been considered negligent, Edwards v. R. R.,
The plaintiff is apparently aware of this, for in paragraph six of the complaint he alleges a failure to warn users of this blind crossing, of the approach of trains, thus giving the bare allegation of obstructions araison d'etre, and therein again sets forth the existence of these obstructions. Although this is repetitive, it is not of a sufficiently serious nature to be characterized as unnecessary repetition, or redundancy, entitling defendant to have the questioned paragraph stricken for that reason.
(d) The allegation that some of the obstructions of the view at the crossing — namely, the defendant's freight cars — were moved by the defendant after the accident, can have no relevancy, as we have analyzed the term, to plaintiff's cause of action. It does not set forth any element thereof, nor does the removal have any proximate relation to plaintiff's injury. In personal injury suits of this kind, occurrencesafter the accident which do not go to the enhancement or aggravation of plaintiff's injuries are clearly of no importance in setting forth the details of defendant's negligence by which plaintiff was injured. This paragraph should have been stricken as irrelevant. It is at best the pleading of evidence, and should therefore also be stricken as redundant. It might be wise to point out that in this State, as in most states, for motives of public policy, evidence of this character is not admissible to show either *300
negligence or an admission of negligence. Lowe v. Elliott,
(2) (a) Precisely those considerations which are determinative of the relevancy of the allegation just considered apply with equal force to the allegation that defendant, after the accident, disciplined certain of the employees who were operating its train. Although the defendant may have been negligent in a multitude of ways in the conduct of its railroad, it is hard to see how disciplining its employees after plaintiff had been injured could have been one of them. The allegation is clearly irrelevant. It also is at best the pleading of evidence and is therefore subject to striking for redundancy. Furthermore, evidence to this effect is inadmissible to show either that the employee was negligent, or that the employer thereby admitted the employee's negligence. Southern Ry. v. Smith,
(b) Although the allegation that defendant did not do all it could have to mitigate plaintiff's injuries does not have any direct bearing on the question to which it is subordinate — negligence of defendant in the operation of its train — still it is of importance on the question of damages if defendant is proven to have been negligent. Although there is no duty to aid others imperiled without the defendant's fault, but through his conduct, Adams v. R. R.,
The order of the court below will be modified in accordance with this opinion, and as so modified, affirmed.
Modified and affirmed. *301