Opinion
(Filed 13 May, 1902.)
1. Evidence — Sufficiency — Negligence — Personal Injuries.
There is no evidence in this case showing negligence on the part of the defendant for personal injuries to plaintiff.
2. Appeal — Exceptions and Objections — Nonsuit.
A defendant whose motion for a nonsuit is overruled, who does not appeal, is not entitled to the benefit of such motion on appeal by plaintiff.
ACTION by Bertha Fritz against the Southern Railway Company, heard by Shaw, J., and a jury, at September Term, 1901, of GUILFORD.
(283) John A. Barringer for plaintiff.
King Kimball for defendant.
This is an action to recover damages for injuries sustained by the negligence of the defendant. The defendant (284) offered no evidence, and, at the close of the plaintiff's evidence, moved to nonsuit the plaintiff. The court refused this motion, and submitted the following issues to the jury:
"1. Was the plaintiff injured by the negligence of the defendant?
"2. What damage, if any, is plaintiff entitled to recover?"
The first issue was answered "Yes" and the second issue "$2,000." After the verdict was returned, on motion of the defendant, the court set aside the verdict of the jury on the first issue, as being against the weight of the evidence; but refused to set aside the verdict on the second issue, and awarded the defendant a new trial as to the first issue. The plaintiff being dissatisfied with the ruling of the court in setting aside the verdict on the first issue, appealed to this Court.
After a careful examination of the evidence, we are of the opinion that the defendant's motion, at the close of the plaintiff's evidence, to nonsuit the plaintiff, should have been allowed. There is no evidence, in our opinion, showing negligence on the part of the defendant. But as the defendant did not appeal, it cannot have the benefit of this motion. In view of the order of the court in setting aside the verdict on the first issue, which destroyed the plaintiff's right to any judgment, it is singular that the finding on the second issue was allowed to stand. But as we do not think the plaintiff was entitled to any judgment against the defendant, we cannot say that there was error in setting aside the finding of the jury on the first issue. And that is all that is presented by this appeal, and there is no error in that part of the judgment appealed from. No error is presented by the case on appeal.
No error.
Cited: S. c., 132 N.C. 829, 831.
(285)