Action to recover damages for the wrongful death of plaintiff's intestate.
There was a judgment of nonsuit as to defendants other than Southern Railway Company.
From judgment on the verdict that plaintiff recover of the defendant, Southern Railway Company, the sum of $4,500 as damages, the said defendant appealed to the Supreme Court. From a judgment dismissing this action as of nonsuit, rendered at a trial in the Superior Court of Haywood County, October Special Term, 1928, plaintiff appealed to this Court. The judgment was reversed. 196 N.C. 466. We were of opinion, and so held, that the evidence offered at said trial should have been submitted to the jury, under appropriate instructions upon issues involving (1) actionable negligence on the part of the defendants; (2) contributory negligence on the part of deceased; (3) the principle of the "last clear chance"; and (4) damages.
At the trial resulting in the judgment from which defendant, Southern Railway Company, has appealed, the evidence was substantially the same as that on the former trial. Defendant on this appeal relies chiefly on its assignment of error based upon its exception to the refusal of the court to allow its motion for judgment as of nonsuit at the close of the evidence. This assignment of error cannot be sustained. The motion was properly denied upon the authority of our decision in the former appeal. We find no error, and the judgment is affirmed.
No error.
STACY, C. J., dissents. *Page 787