Appeal
from Superior Court, New Hanover County; Barnhill, Judge.
Action
by Hazel Batson against the City Laundry Company. From the
judgment, plaintiff appeals.
Error
and remanded with directions.
This is
an action for actionable negligence brought by plaintiff
against the defendant, a corporation, to recover damages, for
the alleged negligence of the defendant in failing to use due
care to provide her with a reasonably safe place to work.
That the defendant failed in the exercise of due care to
provide a stairway or steps leading to the second floor
where its work was carried on, to be kept in a reasonably
safe condition, in consequence of which she sustained
personal injuries. That such negligence of defendant was the
proximate cause of her injury.
The
defendant denied negligence and plead contributory
negligence.
The
issues submitted to the jury, and their answers thereto, were
as follows:
"1.
Was the plaintiff injured by the negligence of the
defendant, as alleged in the complaint? Answer: Yes.
"2.
Did the plaintiff, by her own negligence, contribute to her
injuries, as alleged in the answer? Answer: No.
"3.
What damages, if any, is plaintiff entitled to recover of
the defendant? Answer: $12,250.00."
The
following judgment was rendered by the court below:
"This cause coming on to be heard at this, the October
Term, 1931, of New Hanover County Superior Court, before Hon.
M. V. Barnhill, Judge Presiding, and a jury, and being heard,
at the conclusion of plaintiff's testimony the defendant
moved to dismiss the action as of nonsuit, and the Court
reserved its ruling thereon. At the conclusion of all the
testimony, the defendant renewed its motion to dismiss the
action as of nonsuit, and the Court reserved its ruling
thereon, and pending its ruling upon said motion, submitted
the case to the jury. The jury having rendered the verdict
which appears of record, the Court now, on motion of the
defendant, sets the same aside as a matter of law, for that
there is no sufficient evidence to support the same, and
further for that it is of the opinion that the plaintiff upon
her own testimony is guilty of contributory negligence.
Having set the verdict aside, the Court now, on motion of the
defendant, upon consideration of the motion of nonsuit made
at the conclusion of all the testimony, being of the opinion
that the same should be allowed. Orders, considers and
adjudges that this action be, and the same is hereby
dismissed as of nonsuit."
To the
foregoing judgment as rendered, plaintiff excepted, assigned
error, and appealed to the Supreme Court.
Herbert
McClammy, Burney & McClelland, and Rountree, Hackler & Rountree, all of Wilmington, for appellant.
E. K.
Bryan and L. Clayton Grant, both of Wilmington, for appellee.
CLARKSON
J.
We
think the only material question for us to decide: Does the
judge, by reservation of his right to rule, until after
verdict, upon defendant's motions to dismiss the action
or for judgment as in case of nonsuit (C. S. § 567), then
have the power to set aside the verdict as a matter of law
for insufficiency of evidence, and allow judgment for nonsuit
and dismissal? We think not.
Under
the former practice, upon demurrer to the evidence no further
evidence could be introduced on either side. N.C. Prac. & Proc. (McIntosh) at page 615.
In
Stith v. Lookabill, 71 N.C. at page 29, Pearson,
C.J., has this to say: "A motion to non-suit the
plaintiff, in the midst of a trial, on the ground that his
evidence does not make out a case; the counsel of
defendantstating that if his Honor should overrule the motion
he had evidence to offer, showing title in himself. By a
demurrer to the evidence the defendant puts the case, which
means the exitus issue, or end of the case, upon the
sufficiency of the evidence. The judgment of the Court
decides the action one way or the other. By this novel
practice the defendant has two chances to one, which is not
'fair play.' *** We cannot tolerate this mode of
trial. Code Civil Procedure dispenses with the formal mode of
commencing actions and of pleading, but it does not dispense
with the
rules for conducting trials which have been heretofore
established, as essential to the fair administration of the
law. After a jury is empanneled both sides should, in the
words of Lord Mansfield, 'play out their cards;' so,
in our case, Lookabill is not at liberty to hold back his
defense and 'fish for' the opinion of the Court, upon
the case made by the plaintiff by a motion to nonsuit."
State v. Adams, 115 N.C. 775, 20 S.E. 722; Riley
v. Stone, 169 N.C. at page 422, 86 S.E. 348; Godfrey
v. Coach Co., 200 N.C. 41, 156 S.E. 139.
Now we
have the statutory regulation which is as follows (C. S. §
567): "When on trial of an issue of fact in a civil
action or special proceeding, the plaintiff has introduced
his evidence and rested his case, the defendant may move to
dismiss the action, or for judgment as in case of nonsuit. If
the motion is allowed the plaintiff may except and appeal to
the supreme court. If the motion is refused the defendant may
except, and if the defendant introduces no evidence the jury
shall pass upon the issues in the action, and the defendant
has the benefit of his exception on appeal to the supreme
court. After the motion is refused he may waive his exception
and introduce his evidence just as if he had not made the
motion, and he may again move to dismiss after all the
evidence on both sides is in. If the motion is then refused,
upon consideration of all the evidence, he may except, and
after the jury has rendered its verdict, he has the benefit
of the latter exception on appeal to the supreme court.
(Rev., § 539; 1897, c. 109; 1899, c. 131; 1901, c.
594.)" In regard to criminal actions, see C. S. § 4643.
"In
the trial of issues of fact in a civil action or special
proceeding, when the plaintiff has rested his case, the
defendant may move to dismiss the action, or for judgment as
in case of nonsuit. If the motion is allowed, the plaintiff
may except and appeal; if the motion is refused, the
defendant may except and go to the jury upon the evidence
and if there is a verdict and judgment against him, he may
have the benefit of the exception on appeal. If the motion is
refused, and the defendant introduces evidence, he waives his
first exception, and he may renew...
