Page:Federal Reporter, 1st Series, Volume 3.djvu/85

 78 FEDERAL BBPOBTBB. �and is now, an action for personal injuries. It was submitted to the State court, the jury sworn, the proof submitted to the jury, and when the plaintiff got through with his * * * * evidence the defendant moved the court to dismiss the action hecause the plaintiff had not made out a sufficient case, and the record states that the judge, for that reason, dismissed it. Now, that is an ordinary case of nonsuit. Nonsuit is volun- tary or involuntary. Voluntary nonsuit is where a party sub- mits to tha court and says, "I have not made out a case," and asks that it be dismissed; involuntary nonsuit is just this case : when the case is before the jury, and the plaintiff hav- ing introduced ail of his evidence, the defendants say, "It is not sufficient to go to the jury, and we ask for a nonsuit," and the court says, "You shall have it." Ail such cases, from time immemorial, have been eonsidered as not being judg- ments on the merits. The court says: "As far as you have gone you have not made out a case. That does not say that you caniiot go any further some other time, and taking the facts you cannot make a case, but says up to this time you have not made out a case ; you bave not made a case which requires that judgment on the merits should be rendered; you simply bave not made a case up to the present time." General Cole says, in this particular case the judge of the state court based the decision on the ground that the plain- tiff bas himself shown by bis testimony that he was in f ault, and that he was guilty of some contributory negligence, and he cannot recover if that bas been shown on the trial, and that had been so found by the jury. If he had gone to the jury, and the court had so instructed the jury, it would have been a trial on the merits. But the only way that we find this is in the opinion of the court. That opinion, in my judgment, is no part of the record. I doubt very much whether that opinion can be produced in this case — that is, to showit to the jury. I don't wish to preclude the question, but I don't see how you can produce that as a decision on the merits. Defendants say that the plaintiff had shown his own contributory negligence. It is very obvions that con- tributory negligence is a defence. That bas been decided ����