Midgett v. Branning Mfg. Co.

Citation53 S.E. 178,140 N.C. 361
PartiesMIDGETT v. BRANNING MFG. CO.
Decision Date27 February 1906
CourtUnited States State Supreme Court of North Carolina

53 S.E. 178

140 N.C. 361

MIDGETT
v.
BRANNING MFG. CO.

Supreme Court of North Carolina

February 27, 1906


Appeal from Superior Court, Tyrrell County; Shaw, Judge.

Action by B. S. Midgett against the Branning Manufacturing Company. Plaintiff took a nonsuit, and appeals. Dismissed.

Plaintiff may not take a voluntary nonsuit and appeal, on the court's intimating pending the argument that, if the jury believe the evidence of defendant on a certain matter, plaintiff cannot recover; the matter of fact being still left open for the jury.

Certain issues as to negligence, contributory negligence, assumption of risk, and damage were agreed upon and approved by the court for submission to the jury. Pending the argument the judge intimated what he would charge the jury upon a certain phase of the evidence. Whereupon the plaintiff took a nonsuit and appealed.

Aydlett & Ehringhaus and J. B. Leigh, for appellant.

W. M. Bond and Pruden & Pruden, for appellee.

BROWN, J.

We are of opinion that the nonsuit was unnecessarily and prematurely taken, and without legal grounds to justify it. The right to suffer a nonsuit in an action like this at any time is undisputed. But the plaintiff cannot appeal unless it appears that he was justified in it, or driven to it, by an adverse opinion of the court which would practically bar a recovery. An intimation of an opinion by the judge adverse to the plaintiff upon some proposition of law, which does not "take the case from the jury," and which leaves open essential matters of fact still to be determined by them, will not justify the plaintiff in suffering a nonsuit and appealing. Such nonsuits are premature, and the appeals will be dismissed. We suggest, however, to the judges of the superior courts, that it is advisable to refrain from giving such intimations in advance, as to what they will charge the jury, unless their opinions go to the ""root of the case" and practically bar a recovery. Such intimations may tend to mislead the plaintiff and induce him to suffer a premature nonsuit. It is best to proceed to charge the jury and let all the alleged errors excepted to during the trial come up for review. If the plaintiff is permitted to take a nonsuit and appeal whenever an adverse ruling is made during the trial, not necessarily fatal to his case, it is possible the same case may be brought to this court for review repeatedly, and numerous and unnecessary trials had in the court below. It is best that the case be...

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7 cases
  • Headman v. Board of Com'rs of Brunswick
    • United States
    • North Carolina Supreme Court
    • April 2, 1919
    ... ... Palmer, 150 N.C. 12, 63 S.E. 171; ... Merrick v. Bedford, 141 N.C. 504, 54 S.E. 415; ... Midgett v. Mfg. Co., 140 N.C. 361, 53 S.E. 178 ...          It may ... well be said here, in ... ...
  • Allen v. Atlanta & Charlotte Air Line Ry. Co.
    • United States
    • South Carolina Supreme Court
    • January 10, 1950
    ...and have the ruling reviewed here upon an appeal [216 S.C. 194] from the final determination. Midgett v. [Branning] Manufacturing Co., 140 N.C. 361, 53 S.E. 178. The plaintiff's cause of action was left intact by the ruling of the court. A case could never be 'tried out' or ended if, when a......
  • Allen v. Atlanta & Charlotte Air Line Ry. Co.
    • United States
    • South Carolina Supreme Court
    • January 10, 1950
    ... ... 194] from the final determination. Midgett v. [Branning] Manufacturing Co., 140 N.C. 361, 53 S.E. 178. The plaintiff's cause of action was ... ...
  • McKinney v. Patterson
    • United States
    • North Carolina Supreme Court
    • November 7, 1917
    ... ... Forbes, ... 94 N.C. 221 ...          The ... same rule was applied in Midgett v. Manufacturing ... Co., 140 N.C. 361, 53 S.E. 178, Merrick v ... Bedford, 141 N.C. 504, 54 ... ...
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