Opinion
(Filed 21 December, 1921.)
Negligence — Evidence — Nonsuit — New Action — Second Appeal — Appeal and Error.
It appearing in this case, involving the question of defendant's negligence, that a motion of nonsuit on the evidence has been affirmed on a former appeal ( 180 N.C. 612), and another action has been brought between the same parties for the same cause, and again nonsuited upon substantially the same evidence, the Superior Court having followed the former decisions of the Supreme Court in the former action, the judgment is affirmed on the appeal in the subsequent action, for the reasons stated in the former decision.
APPEAL by plaintiff from Shaw, J., at the August Term, 1921, of YANCEY.
Charles Hutchins and A. Hall Johnson for plaintiff.
Watson, Hudgins, Watson Fouts for defendant.
CLARK, C. J., dissents.
Civil action to recover damages for physical injuries suffered by reason of the alleged negligence of defendant company, its agents and employees, in operating a lumber mill. At close of plaintiff's evidence, on motion, there was judgment of nonsuit, and plaintiff excepted and appealed.
This cause was before the Court in a former appeal, and it was there held that the defendant's motion for nonsuit should have been sustained. This opinion having been certified down, judgment of nonsuit was formally entered pursuant to the opinion. Plaintiff then instituted present suit to recover for the same injury (693) and at close of plaintiff's evidence, on motion, a judgment of nonsuit was again entered and plaintiff excepted and appealed.
On perusal of the present record and a careful comparison with the facts set forth in the former appeal, we are of the opinion that the two actions are made to rest on substantially similar facts, the questions presented are substantially the same, and for the reasons set forth in the former opinion we must hold that the judgment of nonsuit has been properly entered. There, as in this case, the plaintiff at the time of his injury was in the mill getting some edgings, contrary to the rules of the company, contrary to the explicit instructions of his own father, and acting on the invitation and by the directions of one Joe Rischell, a subordinate employee, having no authority, express or implied, to bind or charge the company in this matter by his words or by his conduct. A statement of the pertinent facts and the authorities upon which the ruling is based will sufficiently appear by reference to the former case, reported in 180 N.C. 612. The judgment of the court is
Affirmed.