Hicks v. Southern Railway Co., 189 N.C. 548 (1925)

April 22, 1925 · Supreme Court of North Carolina

189 N.C. 548

L. K. HICKS v. SOUTHERN RAILWAY COMPANY.

(Filed 22 April, 1925.)

1. Evidence — Nonsuit—Statutes.

A motion as of nonsuit made under the provisions of O. S. 567, at the close of plaintiff’s evidence and renewed at the close of all the evidence, will be denied if it is sufficient to support a verdict in plaintiff’s favor taken in the light most favorable to him, whether elicited on direct or cross-examination, and he is entitled to the benefit of every reasonable inference to be drawn therefrom.

3. Railroads' — Negligence—Contributory Negligence — Damages.

The contributory negligence of an employee against a railroad company, his employer, will not be held under our statute as a complete bar to his recovery of damages inflicted by the defendant’s negligence, but the jury must take it into consideration under proper instructions from the court, in diminishing the amount of damages recoverable.

Appeal by defendant from McFlroy, J., at January Term, 1925, of G-uilfoed.

Civil action tried upon tbe following issues:

“1. "Was tbe plaintiff injured by tbe negligence of tbe defendant, as alleged in tbe complaint? Answer: Tes.

“2. Did tbe plaintiff by bis own negligence contribute to bis said injury, as alleged in tbe answer? Answer: Yes.

“3. Wbat amount of damages, if any, is tbe plaintiff entitled to recover? Answer: $5,000.00.”

From a judgment .on tbe verdict for plaintiff, tbe defendant appeals, assigning errors.

Bynum, Hobgood & Alderman for plaintiff.

Wilson & Frazier for defendant.

Pee Cubiam.

Defendant relies entirely upon its demurrer to tbe evidence, interposed first at tbe close of plaintiff's evidence, by motion to dismiss tbe action or for judgment as of nonsuit, and renewed by like motion at tbe close of all tbe evidence. C. S., 567.

Viewing the evidence in its most favorable light for the plaintiff, the accepted position on a motion of tbis kind, we tbink ,the trial court was justified in submitting the case to the jury and that the verdict is amply supported thereby. It is the settled rule of practice in tbis jurisdiction that, on a motion to nonsuit, the evidence which makes for the plaintiff's claim and which tends to support bis cause of action, whether offered by the plaintiff or elicited from the defendant’s witnesses, is to be taken and considered in its most favorable light for the plaintiff, and be is entitled to the benefit of every reasonable intendment upon the evidence and every reasonable inference to be drawn therefrom. Nash v. Royster, ante, 408.

No benefit would be derived from detailing tbe testimony of tbe several witnesses, as tbe only question before us is wbetber it is sufficient to carry tbe case to tbe jury, and we think it is.

Tbe plaintiff being in tbe employ of a common carrier by railroad, and having brought bis action to recover damages for an alleged negligent injury, received while in tbe discharge of bis duties as such employee, is not barred of bis right to recover by reason of bis own contributory negligence, but such negligence is to be taken in consideration by tbe jury in diminishing tbe damages which be otherwise would have been entitled to have awarded. The rule applicable is stated in Cobia v. R. R., 188 N. C., p. 496.

Tbe evidence was conflicting on tbe main issue of liability; tbe jury has determined tbe matter against tbe defendant; there is no reversible error appearing on tbe record; tbe verdict and judgment will be upheld.

No error.