Opinion
(Filed 28 September, 1932.)
Appeal and Error L c — Decision on former appeal that evidence was sufficient is conclusive on second appeal when evidence is the same.
Where on a former appeal the Supreme Court has adjudicated that the evidence was sufficient to overrule a motion of nonsuit and on the subsequent trial the evidence is substantially the same as on the first the plaintiff's exception to the court's refusal to nonsuit the second action will be overruled.
APPEAL by defendant from Cranmer, J., at March Term, 1932, of PITT. No error.
F. G. James Son for appellant.
Julius Brown and Harding Lee for appellee.
This is an action to recover damages for injury to person and property suffered by the plaintiff at a railroad crossing. The Norfolk Southern Railroad Company and the Sinclair Refining Company were made parties defendant. The case was first tried in October, 1930, and was dismissed as to both defendants. The plaintiff appealed and this Court affirmed the judgment of nonsuit as to the Sinclair Refining Company and granted a new trial against the Railroad Company, 200 N.C. 784.
The cause again came on for trial at the March Term, 1932, of the Superior Court of Pitt County. The plaintiff alleged that on 11 March, 1928, about ten o'clock in the morning, he was traveling on a public highway in the direction of Farmville and while crossing the railroad track was injured by the negligence of the defendant. The circumstances are set out in the complaint and need not be repeated. The defendant denied negligence and pleaded the contributory negligence of the plaintiff. The usual issues were submitted to the jury and upon the return of a verdict favorable to the plaintiff he was given a judgment, from which the defendant appealed upon assigned error.
The defendant made the two statutory motions for nonsuit and excepted to the court's refusal to dismiss the action. This exception is overruled for the reason that the evidence does not differ materially and fundamentally from the evidence introduced on the first trial, the sufficiency of which to bar a nonsuit was adjudicated on the former appeal.
The appellant has several exceptions to the admission of evidence but we do not find reversible error in any one of them.
No error.