Parlier v. Southern Railway Co.

Eueches, O. J.

Tbe plaintiff fell and was injured in getting off defendant’s train at tbe station in Concord, and brings tbis action for damages. At tbe close of .plaintiff’s evidence, tbe defendant moved to dismiss tbe plaintiff’s action under tbe statute. But upon tbe Court’s refusing tbis motion, tbe defendant introduced evidence, and tbe plaintiff introduced additional evidence; and at tbe close of tbe plaintiff’s additional evidence, tbe defendant renewed its motion to dismiss tbe action upon tbe ground tbat tbe evidence, if believed, did not malee a prima facie case. Tbis motion being refused, tbe defendant excepted, and, upon appeal, assigned tbe following as error:

“1. Tbe ruling of tbe Court refusing to nonsuit tbe plaintiff at tbe close of ber own evidence.

“2. Tbe refusal of tbe Court to nonsuit tbe plaintiff at tbe close of tbe whole evidence, “3. Tbe refusal of tbe Court to grant a new trial.”

There are no exceptions to tbe charge of tbe Court, nor was there any exception to tbe evidence; and these assignments of error and tbe evidence constitute tbe case on appeal.

Tbis Court held in Means v. Railroad, 126 N. C., 424 , construing tbe act of 1897, Cbap. 109, as amended by the act of 1899, Cbap. 131, tbat if tbe defendant introduced evidence after making a motion to dismiss, be thereby waived any rights be bad under said motion. But at tbe close of all tbe evidence, be might renew bis motion to dismiss, and tbis motion stood upon a consideration of tbe whole evidence introduced by tbe plaintiff and tbe defendant. Tbis construction has since been made tbe law by tbe Legislature. Acts, 1901, Cbap. 594.

*264 As tbe defendant waived its first motion by introducing evidence, it is not necessary to consider tbe evidence introduced before tbe first motion and tbat introduced afterwards, separately, as tbis last motion depends upon tbe whole evidence in tbe case, and tbis evidence must be considered in tbe most favorable light for tbe plaintiff. Nor is it necessary tbat we should quote all tbe testimony, but only enough to show tbe negligence of tbe defendant, if believed.

Taggert, a witness for tbe plaintiff, testified: “That be was on tbe train tbat day; there were seven passengers to get off at Concord; my wife got off first, then a little boy, then Mrs. Barringer and Aunt Flora; I was just behind Mrs. Parlier; when she was on tbe last step, tbe train jerked off like a horse when you strike him. I bad my little boy in my arms, and a valise, when I got off. We prepared to get off as station was called; so did Mrs. Parlier. We did not stand and talk. Conductor did not help any of us off; be was not there trying to keep people back.”

There were other witnesses examined for plaintiff, but tbe evidence we have quoted was tbe most favorable for tbe plaintiff. Tbis evidence was contradicted by tbat of tbe defendant, which, if believed by tbe jury, showed tbat defendant was not negligent, and tbat plaintiff’s injury was without fault on its part. But tbis contradiction was a matter for tbe jury to- settle, and can do tbe defendant no 'good on tbis appeal.

Upon tbe evidence, we do not think tbe Judge could have taken tbe case from tbe jury, as be bad no more right to reconcile tbis conflict of evidence than we have.

There was no error in overruling tbe defendant’s motion to dismiss, and tbe judgment is Affirmed.