Chandler v. Carolina Mills

• Decision Date: 01 November 1916
• Docket Number: (No. 362.)
• Citation: 90 S.E. 299
• Parties: CHANDLER. v. CAROLINA MILLS.
• Court: North Carolina Supreme Court

(172 N.C. 366)

90 S.E. 299

CHANDLER.

v.CAROLINA MILLS.

(No. 362.)

Supreme Court of North Carolina.

Nov. 1, 1916.

Appeal from Superior Court, Forsyth County; Long, Judge.

Action by J. B. Chandler against Carolina Mills. There was a judgment of the superior court affirming a judgment of nonsuit ordered by the county court, and plaintiff appeals. Dismissed.

The plaintiff sued for the recovery of damages on account of personal injuries received by him while assisting one James Hunter in lifting the heavy lid of a dye machine, under orders from the superintendent of the defendant's mill; he being, at the time, in the employ of defendant. This was not his regular duty, as he was assigned to work, as fireman, at the engine.

He alleged that his injuries were caused by two distinct acts of negligence on the part of defendant: (1) That the dye machine was defectively constructed, with reference to the lifting of the lid in safety; it having no proper appliances or means of raising and lowering the lid, which weighed 400 pounds, and that defendant failed to provide sufficient and competent help with which to do the work. (2) That while they were lifting the lid, James Hunter negligently let go the lid before plaintiff could fasten the same securely, and thereby allowed it to fall on the plaintiff's arm.

Judge Starbuck, at the close of the evidence, intimated that he would charge the jury, among other things, that, if they should find there was no negligence of defendant, in respect to the construction of the dye machine or in not furnishing a sufficient force to lift the lid, the defendant would not be liable on account of any negligence of James Hunter; he being a fellow servant of plaintiff. Plaintiff excepted to this intimation of opinion, and, in deference thereto, he submitted to a nonsuit, and appealed. The judgment was affirmed in the superior court, and plaintiff again appealed.

Holton & Holton and J. B. Craver, all of Winston-Salem, for appellant.

J. C. Buxfton, Watson, Watson & Robinson, and R. G. Parker, all of Winston-Salem, for appellee.

WALKER, J. (after stating the facts as above). We need not inquire into the correctness of the ruling as to the effect of any negligence of James Hunter, as we are of the opinion that the nonsuit and appeal were prematurely taken. The law with respect to this matter has been thoroughly well settled by this court. Before a plaintiff can resort to a nonsuit, and have any proposed ruling of the trial court reviewed here by appeal, the intimation of opinion by the judge must be of such a nature as to defeat a recovery. If there is any ground left upon which the plaintiff may succeed before the jury, after the elimination of all others by an adverse intimation, the remedy is not by nonsuit and appeal, but the case should be tried out upon the remaining ground, for the plaintiff may recover full damages, in which case no appeal by him would be necessary. In other words, the threatened ruling must exhaust every ground upon which a verdict could be had, and therefore be fatal to plaintiff's recovery. Speaking to this peculiar, but sometimes expeditious, practice of the courts, it was said, in Hayes v. Railroad Co., 140 N. C. 131, 134, 52 S. E. 416, 417:

"It is common practice for a plaintiff to submit to an involuntary nonsuit, which he is driven or compelled to take, reserving leave to move afterwards to set the same aside, with a view not to abandon the...