Opinion
(Filed 17 March, 1937.)
Appeal and Error § 55 —
A decision of the Supreme Court in reviewing a judgment as of nonsuit that plaintiff was not guilty of contributory negligence on her own statement, has reference only to the judgment as of nonsuit, and does not preclude the submission of the issue of contributory negligence upon the subsequent trial.
APPEAL by plaintiff from Sink, J., at January Term, 1937, of BUNCOMBE.
J. Y. Jordon, Jr., for plaintiff, appellant.
Harkins, Van Winkle Walton for defendant, appellee.
Civil action for death of plaintiff's dog, alleged to have been caused by negligence of defendant in operation of automobile.
The issues of negligence and contributory negligence were both answered in the affirmative by the jury. From judgment thereon plaintiff appeals, assigning error in the submission of the second issue.
As the verdict is supported by the evidence, there was no error in submitting the issue of contributory negligence to the jury.
The statement on the former appeal, "The contention that the plaintiff was guilty of contributory negligence on her own statement is untenable on this record" ( 210 N.C. 429, 187 S.E. 558), was not intended to preclude the submission of the issue to the jury, but had reference to the motion to nonsuit, the only matter then being considered. Hayes v. Tel. Co., ante, 192.
The verdict and judgment will be upheld.
No error.