Midgett v. Manufacturing Co.
Supreme Court of North Carolina
ActioN by B. S. Midgett, Administrator, against Branning Manufacturing Co., for negligently causing the death of one Wade Leary, beard by Judge T. J. Shaw and a jury, at the Special Term, 1905, of the Superior Court of Tyebell. Certain issues as to negligence, contributory negligence, assumption of risk and damage were agreed upon and approved by the court for submission to the jury.
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ActioN by B. S. Midgett, Administrator, against Branning Manufacturing Co., for negligently causing the death of one Wade Leary, beard by Judge T. J. Shaw and a jury, at the Special Term, 1905, of the Superior Court of Tyebell. Certain issues as to negligence, contributory negligence, assumption of risk and damage were agreed upon and approved by the court for submission to the jury. Pending the argument, the judge intimated what he would charge the jury upon a certain phase of the evidence. Whereupon the plaintiff took a nonsuit and appealed.
1Opinion of the CourtBrown, J.
We are of opinion that the nonsuit was unnecessarily and prematurely taken, and without legal grounds to justify it. The right to suffer nonsuit in an action like this at any time is. undisputed. But the plaintiff cannot appeal unless it appears that he was justified in it, or driven to it, by an adverse opinion of the court which would practically bar a recovery. An intimation of an opinion by the judge adverse to the plaintiff upon some proposition of law, which does not “take the case from the jury” and which leaves open essential matters of fact still to be determined by them, will not…
2Cases cited3 opinions
- State Ex Rel. Crawley v. WoodfinSupreme Court of North Carolina · 1878
- Hayes v. RailroadSupreme Court of North Carolina · 1905
- Davis v. . ElySupreme Court of North Carolina · 1888
3Cited by12 opinions
- Kelly v. Great Atlantic & Pacific Tea Co.Court of Appeals for the Fourth Circuit · 1936
- Allen v. Atlanta & Charlotte Air Line Ry. Co.Supreme Court of South Carolina · 1950
- Chambers v. . R. R.Supreme Court of North Carolina · 1916
- Hoss v. . PalmerSupreme Court of North Carolina · 1908
- McKinney Ex Rel. McKinney v. PattersonSupreme Court of North Carolina · 1917
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