110 S.E. 64 | N.C. | 1921
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
Affirmed.
