Morrow v. Atlanta & Charlotte Air Line Ry. Co.

I concur in affirming the judgment of the Circuit Court.

If it were an open question, I would concur in the opinion that where the plaintiff proves facts showing that as a matter of law he is not entitled to recover, a judgment of nonsuit on the merits of the cause has the same effect as a judgment on a verdict or other final judgment on the merits, and is a complete defense to another action. This doctrine is held in some of the States, but it has been held otherwise by our Court. Baker v. Beliesseline, 4 Mc., 472; McEwen v.Mazyck Bell, 3 Rich., 210; Whaley v. Stevens, 24 S.C. 479. The decisions of the Supreme Court of North Carolina are to the same effect. Tussey v. Owens (N.C.),61 S.E., 180, and cases cited. This seems to be also the view of the Supreme Court of the United States. Homar v. Brown, 16 How., 352, 14 L.Ed. 970; Life Ins. Co. v. Broughton,109 U.S. 121, 27 L.Ed., 878; U.S. v. Parker, 120 U.S. 69,30 L.Ed., 601, 604.

The accident happened and the injury was received in the State of North Carolina. The Supreme Court of North Carolina, in two actions brought by the plaintiff on the same alleged cause of action, has held that the facts adduced by the plaintiff on the trial conclusively showed that he was not entitled to recover and affirmed the judgment of nonsuit. The position that the evidence here was substantially different from that introduced on the trials in North Carolina, we do not think it is borne out by the record. There are, it is true, slight differences in detail, but this material fact appears in all the evidence, namely, that the plaintiff was engaged in the act of getting off a moving train, and his undertaking to do so was a proximate cause of his injury. The plaintiff's case depends upon the law of North Carolina, and the Supreme Court of that State has held in the plaintiff's own case, and other cases, that such conduct is contributory negligence and defeats a recovery. The language of Justice Walker, speaking for the court, is conclusive: "But even if there was evidence of the defendant's negligence in the case, we do not think there was any error in the ruling of the court below, because the plaintiff, upon his own showing, was guilty of contributory negligence which was the proximate cause of his injury. When he found that the train was in motion and its speed steadily increasing, he should have notified the conductor of his situation, so that the train could be stopped, or he should have waited until it reached the next station before he attempted to get off. His failure to do so, and his attempt to alight from the train which was then running at the rate of three or four miles an hour, was such negligence on his part as defeats his right of recovery."

I do not think it is necessary to construe or decide upon the applicability of the North Carolina statute, providing for a second action to be brought within one year after a judgment of nonsuit; and in the absence of necessity, this Court should refrain from making the attempt.