By this appeal the defendant Keller seeks to review the ruling of the trial judge in denying his motion for judgment of nonsuit as to plaintiff Whitе’s action, and in setting aside the verdict as contrary to the weight of the evidence. As the verdict was set aside by the judgе in the exercise of his discretionary power, his action may not be reviewed, in the absence of any suggestion of abuse of discretion.
Anderson v. Holland,
Nor will an appeal lie at this time from the ruling of the judge denying defendant’s motion for judgment of nonsuit. Sinсe there is neither verdict nor judgment, there is no basis upon which his appeal on this ground can rest. As result of the actiоn of Judge Rudisill, the case is still on the docket of Catawba Superior Court for trial on the issues raised by the pleadings as between White and Keller.
*100 The defendant Keller also assigns as error the action of the trial judge in allowing defendant Vander Linden’s motion for judgment of nonsuit as to Keller’s cross complaint for contribution under the statute, G.S. 1-240.
It seems the judge inadvertently nonsuited the plaintiff White as to Vander Linden, but the plaintiff has sought no recovery as to him. She offered neither allegation nor evidence tending to impose on him any liability for her injury.
Pascal v. Transit Co.,
It was said in
Evans v. Johnson,
“The right of a defendant sued in tort to bring into the action another joint tort-fеasor and upon sufficient plea to maintain his cross action against him for the purpose of determining his contingent liability for contribution is given by statute, G.S. 1-240, and upheld by numerous decisions of this Court. Wilson v. Massagee,224 N.C. 705 ; Godfrey v. Power Co.,223 N.C. 647 . The purpose of the statute is to permit defendants in tort actions to litigate mutual contingent liabilities before they have accrued, Lackey v. R. R.,219 N.C. 195 ,13 S.E. 2d 234 , so that all matters in controversy growing out of the same subject of action may be settled in one action, Freeman v. Thompson,216 N.C. 484 ,5 S.E. 2d 434 , though the plaintiff in the action may bе thus delayed in securing his remedy. Montgomery v. Blades,217 N.C. 654 ,9 S.E. 2d 397 . Joint tort-feasors are those who act together in committing a wrong, or whose acts, if indеpendent of each other, unite in causing a single injury. Bost v. Metcalfe,219 N.C. 607 ,14 S.E. 2d 648 . The right thus conferred by the statute is ‘rooted in and springs from the plaintiff’s suit, but projects itself beyond that suit.’ Godfrey v. Power Co., supra.”
The question of the sufficiency of the cross complaint of a defendant to make out a case for contribution against an alleged j oint tort-feasor was considered by this court on appeal from the ruling of the court below sustaining a demurrer in
Hobbs v. Goodman,
The cross action for contribution between defendants charged with tort, permitted by G.S. 1-240, may not be used, however, to interject into the litigation another action not germane to the plaintiff’s actiоn.
Montgomery v. Blades,
However, upon consideration of the evidence offered in the case at bar as shown by the rеcord, we reach the conclusion that the ruling of the trial judge in holding this evidence insufficient to make out a case for contribution by Vander Linden should be sustained.
It appears that defendant Vander Linden’s automobile was parked diаgonally near the highway, 24 feet south from the south abutment of the bridge, and that the rear of his automobile (left rear fender) extended out two feet into the paved road which was at that point seventeen feet wide. It was midafternoon on a clear day. No other traffic was moving in the vicinity save the automobile of plaintiff some distance awаy moving south along the bridge. The hay baler attached to Keller’s jeep was eight feet wide, considerably wider than the jeep. In passing the automobile Keller apparently miscalculated the distance or was oblivious of thе extra width of the hay baler. In any event, the hay baler came in contact with the automobile and then struck the side оf the bridge abutment. This caused the jeep to be deflected, or “jackknifed,” in front of plaintiff’s automobile.
So that whеther the contact of the hay baler with the rear of the Vander Linden automobile should have been foreseеn and avoided — fifteen feet of the roadway was unobstructed — -or whether Keller, in meeting plaintiff’s oncoming automоbile, negligently drove the jeep so close to the abutment of the bridge that the hay baler was caused to strike it, *102 rеsulting in the collision complained of, we think the evidence is insufficient to show that any negligence on Yander Linden’s pаrt proximately caused or contributed to plaintiff’s injury.
We reach the conclusion that the rulings of the court below should be sustained.
Affirmed.