At the close of the plaintiff’s evidence and at the close of all the evidence the defendant in the court below made motions for judgment as in case of nonsuit. C. S., 567. The court below allowed the motion at the close, of all the evidence and in this we think there was error.
The learned judge in the court below seems to have been uncertain as to the sufficiency of evidence to be submitted to the jury. The motion for nonsuit at the close of all the evidence was first denied. In the record it appears, “During the argument of counsel, the court sustained the defendant’s motion for judgment as of nonsuit.”
The able counsel for defendant, as usual, states succinctly defendant’s contentions as follows: “We submit that the plaintiff has not shown a disability due independently and exclusively of all other causes to his alleged fall on 25 May, 1931. But on the contrary the record shows the accident of 28 February, 1931, to be the sole cause of his present disability, or at least that the two accidents joined and concurred in pro*548ducing Ms disability. We respectfully submit that the judgment of nonsuit should be sustained.”
After a careful review of the evidence, wMcb we will not repeat, as the ease goes back for trial, we think the matter in controversy should have been left for a jury to determine. The evidence was pro and con on the question involved, therefore it should have been submitted to a jury.
In Penn v. Insurance Co., 160 N. C., 399 (404); rehearing (S. c., 158 N. C., 29), is the following: “Reasoning from the authorities cited in the briefs filed by both parties in the appeal, and in the former opinion of the Court, and the admittedly correct proposition above stated, it appears that under policy contracts such as the one under consideration, three rules may be stated: (1) When an accident caused a diseased condition, which, together with the accident, resulted in the injury or death complained of, the accident alone is to be considered the cause of the injury or death. (2) When at the time of the accident the insured was suffering from some disease, but the disease had no causal connection with the injury or death resulting from the accident, the accident is to be considered as the sole cause. (3) When at the time of the accident there was an existing disease, which, cooperating with the accident, resulted in the injury or death, the accident cannot be considered as the sole cause, or as the cause independent of all other causes.”
For the reasons given, the judgment of the court below is
Reversed.