Martin v. . Spencer

Stacy, O. J. The present case is controlled by the decision in Kirby v. Stores Corp., 210 N. C., 808, 188 S. E., 625, under which it was tried, unless the absence of evidence to fix the defendant with knowledge of plaintiff’s enceinte condition brings it within the principles announced in Anthony v. Protective Union, 206 N. C., 7, 173 S. E., 6. This single point of difference is not regarded as capitally important or of sufficient divergence to change the result. May v. Tel. Co., 157 N. C., 416, 72 S. E., 1057. There is evidence of a forcible trespass and also trespass to the person of the plaintiff. 63 C. J., 891. Hence, the verdict and judgment will be upheld on authority of the Kirby case. “But if there may he a recovery for physical injuries resulting from fright wrongfully caused by the defendant, it would seem that an assault committed in the view of a woman whose presence is known, especially upon a member of her family, was an act of negligence towards the woman, a failure to exercise the due care towards her which the occasion and circumstances required, and was therefore a legal wrong against her which will support an action, if damage follows.” 1 Cooley on Torts (3rd), p. 98. The exceptions addressed to other phases of the trial, admission and exclusion of evidence and portions, of the charge call for no elaboration. They are not sustained. No error.