Lee v. Penland
| Decision Date | 18 February 1931 |
| Docket Number | 592. |
| Citation | 157 S.E. 31,200 N.C. 340 |
| Parties | LEE v. PENLAND et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Buncombe County; Barnhill, Judge.
Action by D. V. Lee against Addie Penland and J. A. Penland. Judgment of nonsuit as to defendant last named and verdict for plaintiff as against defendant first named were thereafter set aside, and plaintiff appeals.
Error and cause remanded.
Motion for dismissal of judgment of nonsuit at close of plaintiff's evidence, and not renewed at close of all evidence, is waived.
Appellate court, when defendant introduced witnesses and failed to renew motion for nonsuit at close of evidence, will treat appeal as though no motion was made to dismiss.
Action to recover damages for personal injury. In her complaint the plaintiff alleged that on the occasion complained of the defendants owned and had in charge an apartment house on Ravenscroft drive, in the city of Asheville, that each of the defendants was an agent of the other, and that she was a renter for pay of one of the apartments. It was afterwards admitted that Addie Penland owned the building. The house is situated on an elevation 15 or 20 feet above the street, and has an approach of concrete steps without banisters. The plaintiff alleged that on the landing at the top of the steps the defendants kept a worn and raveled mat or rug, which was "hazardous, dangerous, and unsafe for the plaintiff," who had occasion to use it in going to and from her apartment, and that on October 12, 1929, when she was going from the house to the street, her foot was caught in the raveled mat and she was thrown down the steps and seriously injured. She set forth as the proximate causes of her injury: (1) The carelessness and negligence of the defendants in failing to provide a hand railing or banister along the sides of said steps by which the plaintiff could have steadied herself and could have held and avoided the accident hereinbefore complained of; (2) the carelessness and negligence of the defendants in placing and maintaining, or causing to be placed and maintained, a worn, raveled, and dangerous rug or mat on the high landing of the steps.
The defendants denied that the plaintiff was injured by their negligence, alleged that J. A. Penland had nothing to do with the accident and owed no duty to the plaintiff, and pleaded contributory negligence. The plaintiff offered evidence and rested; the defendants moved for judgment of nonsuit; the motion was allowed only as to J. A. Penland; the other defendant excepted.
The plaintiff was allowed, in the court's discretion, to offer other testimony. At its close Addie Penland again made a motion for nonsuit, which was refused, and she excepted. Thereupon she offered evidence. The plaintiff testified in rebuttal, and the evidence was closed; but the defendant did not renew her motion for judgment of nonsuit at the close of all the evidence.
In response to the issues, the jury found that the plaintiff's injury was caused by the negligence of Addie Penland, that the plaintiff did not negligently contribute to her injury, and that she was entitled to damages, which were assessed.
The defendant moved to set aside the verdict, and the judge made the following order: "The Court sets aside the verdict upon the first issue in this cause as a matter of law and assigns as his reason therefor that there is not sufficient evidence appearing in the record to sustain the answer to said issue."
The plaintiff excepted and appealed.
Johnson Smathers & Rollins, of Asheville, for appellant.
Merrimon Adams & Adams, of Asheville, for appellee.
When the plaintiff in a civil action has introduced his evidence and rested his case, the defendant may move for dismissal of the action, or for judgment as in case of nonsuit. If the motion is allowed, the plaintiff may except and appeal; if it is not allowed, the defendant may except, and, if he introduces no evidence, the jury shall pass upon the issues and he may have the benefit of the latter exception on appeal. A motion for dismissal or for judgment of nonsuit made at the close of the plaintiff's evidence and not renewed at the close of all the evidence, is waived. ...
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...Coach Co., 200 N.C. 41, 156 S.E. 139; Price v. Ins. Co., 200 N.C. 427, 157 S.E. 132, and Id., 201 N.C. 376, 160 S.E. 367; Lee v. Penland, 200 N.C. 340, 157 S.E. 31. careful perusal and consideration of all the evidence leads us to the conclusion that the judgment below must be Affirmed. CLA......
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State v. Kiziah, 289.
...court he waives his right to have the insufficiency of the evidence to be submitted to the jury considered on appeal. Lee v. Penland, 200 N.C. 340, 157 S.E. 31; Debnam v. Rouse, 201 N.C. 459, 160 S.E. 471; Harrison v. Metropolitan Life Ins. Co., 207 N.C. 487, 177 S.E. 423. Section 4639 is a......
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