Parlier v. Southern Ry. Co

• Decision Date: 19 November 1901
• Citation: 129 N.C. 262,39 S.E. 961
• Parties: PARLIER. v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

39 S.E. 961

129 N.C. 262

PARLIER.

v.SOUTHERN RY. CO.

Supreme Court of North Carolina.

Nov. 19, 1901.

CARRIERS—INJURIES TO PASSENGER—QUESTION FOR JURY.

1. Under Acts 1901, c. 594, providing that a defendant introducing evidence after moving for a nonsuit thereby waives his rights under the motion, a defendant who introduces evidence after moving for a nonsuit cannot on appeal assign as error the court's ruling thereon.

2. Plaintiff's evidence showed that she was one of the last of seven passengers to alight from defendant's train at a station, and that when she was on the last step of the car the train suddenly jerked forward, causing her to fall; that she prepared to get off as the station was called; that the conductor did not aid her, and was not there when the passengers alighted. Her witnesses were contradicted by defendant's evidence, which showed that defendant was not negligent. Held, that the issue of defendant's negligence was for the jury, and hence it was not error to deny defendant's motion to dismiss.

Appeal from superior court, Cabarrus county; Allen, Judge.

Action by Alice J. Parlier against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Geo. F. Bason and A. B. Andrews, Jr., for appellant.

Montgomery & Crowell, for appellee.

PURCHES, C. J. The plaintiff fell and was injured in getting off defendant's train at the station in Concord, and brings this action for damages. At the close of plaintiff's evidence the defendant moved to dismiss the plaintiff's action under the statute. But upon the court's refusing this motion the defendant introduced evidence, and the plaintiff introduced additional evidence, and at the close of the plaintiff's additional evidence the defendant renewed its motion to dismiss the action upon the ground that the evidence, if believed, did not make a prima facie case. This motion being refused, the defendant excepted, and upon appeal assigned the following as error: "(1) The ruling of the court refusing to nonsuit the plaintiff at the close of her own evidence; (2) the refusal of the court to nonsuit the plaintiff at the close of the whole evidence; (3) the refusal of the court to grant a new trial." There are no exceptions to the charge of the court, nor was there any exception to the evidence, and these assignments of error and the evidence constitute the case on appeal.

This court held in Means v. Railroad Co., 126 N. C. 424, 35 S. E. 813, construing Act 1897, c. 109, as amended by Act 1899, c. 131, that, if the defendant introduced evidence after making a motion to dismiss, he thereby waived any rights he had under said motion. But at the close of all the evidence he might renew his motion to dismiss, and this motion stood upon a consideration of the...