Lindsey v. Suncrest Lumber Co., 189 N.C. 118 (1925)

Jan. 24, 1925 · Supreme Court of North Carolina
189 N.C. 118


(Filed 24 January, 1925.)

Evidence — Nonsuit—Statutes—Questions for Jury.

A judgment as of nonsuit upon the evidence (C. S., 567) should not be rendered when construed in the light most favorable to the plaintiff, giving him the benefit of every reasonable intendment and every reasonable inference therefrom, it is sufficient in law to be submitted to the jury upon the controverted questions.

*119Appeal by plaintiff from Bay, J., at September Term, 1924, of Haywood.

Tbis is a civil action, tried at September Term, 19.24, of tbe Superior Court of Haywood County, before bis Honor, J. Bis Ray, and a jury. At tbe close of plaintiff’s testimony tbe defendant moved for judgment as of nonsuit, wbicb was allowed as to tbe defendants Mack Hensley and Lat McCurry, and overruled as to defendant Suncrest Lumber Company, to wbicb tbe defendant excepted. At tbe close of all tbe testimony, defendant’s motion for nonsuit was renewed, and allowed by tbe court, to wbicb plaintiff excepted, assigned error, and appealed to tbe Supreme Court.

Morgan & Ward for plaintiff.

Alley & Alley for defendants.

Clarkson, J.

Defendants made a motion for judgment as in case of nonsuit, at tbe close of plaintiff’s evidence and at tbe close of all tbe evidence. C. S., 567. Tbe court below allowed tbe motion as to defendants Mack Hensley and Lat McCurry at tbe close of plaintiff’s evidence, and as to tbe Suncrest Lumber Company at tbe close of all'tbe evidence, and in tbis we tbink there was error.

On a motion to nonsuit, tbe evidence is to be taken in tbe light most favorable to plaintiff, and be is entitled to tbe benefit of every reasonable intendment upon tbe evidence, and every reasonable inference to be drawn therefrom. Christman v. Hilliard, 167 N. C., 6; Oil Co. v. Hunt, 187 N. C., 157; Hanes v. Utilities Co., 188 N. C., 465.

In Hancock v. Southgate, 186 N. C., p. 282, we said: “Where there is any evidence to support plaintiff’s claim, it is tbe duty of a judge to submit it to tbe jury, and tbe weight of such evidence is for tbe jury to determine.”

“Tbe credibility of witnesses, tbe weight and probative value of evidence are to be determined by tbe jury, and not by tbe judge. However, many decisions of tbis Court establish that, in every case, it is tbe duty of the judge to direct a verdict in favor of one of tbe parties when tbe testimony and all tbe inferences wbicb tbe jury could justifiably draw therefrom would be insufficient to support a different finding.” B. & O. R. R. Co. v. Groeger, U. S. Supreme Court (filed 5 January, 1925).

From a critical examination of tbe evidence, we are of tbe opinion that tbis cause should have been submitted to a jury.

As tbe case goes back for a jury trial, we tbink it unnecessary to discuss tbe evidence.

For reasons given, tbe judgment is