Court of Appeal

CASE NO.                                                  VOLUME                                                          PAGE

Cite as: Herman v. Woodworth, 1998 NSCA 34

RICKY NOBLE HERMAN                                                                MARLON WOODWORTH

                                                                        - and -

(Appellant)                                                                                                                (Respondent)

C.A.  No.  138655                                Halifax, N.S.                                              FLINN, J.A.

APPEAL HEARD:                                        February 2, 1998

JUDGMENT DELIVERED:             February 4, 1998

SUBJECT:           Non-suit motion - Civil Procedure Rule 30.08 - Appellate Review

SUMMARY:        The appellant brought proceedings for damages for personal injuries suffered in a motor vehicle collision.  At trial, following the appellant=s case, the trial judge granted the respondent=s motion for non-suit and dismissed the appellant=s action.

ISSUE:                 Appellate Review

RESULT: Appeal allowed - new trial ordered before a different judge.

1.         On a motion for a non-suit, the question as to whether a plaintiff has established a prima facie case is a question of law.  As such, it is reviewable by the Court of appeal.

2.         On the evidence before the trial judge - if believed - a reasonable jury could find some negligence on the part of the respondent which caused, or contributed to, the appellant=s injuries.  The non-suit motion should not have been granted.

3.         In this case, which was not a lenghy trial, since the trial judge assessed the weight and believability of the evidence, a new trial should be ordered before a different judge.