Hayes v. Western Union Telegraph Co.
189 S.E. 499
N.C.
1937
Check Treatment
StaCY, C. J.

The battleground of debate is whether the alleged contributory negligence of feme plaintiff should be held to bar recovery as a matter of law. Holton v. R. R., 188 N. C., 277, 124 S. E., 307. It is conceded that ordinarily the issue is for the twelve. Lincoln v. R. R., 207 N. C., 787, 178 S. E., 601; Butner v. R. R., 199 N. C., 695, 155 S. E., 601; Smith v. R. R., 200 N. C., 177, 156 S. E., 508. See, also, Davis v. R. R., 187 N. C., 147, 120 S. E., 827, where the question is discussed at length by Hoke, J., with full citation of authorities.

Originally, under C. S., 567, in eases to which it was applicable, there was considerable doubt as to whether a plea of contributory negligence— the burden of such issue being on the defendant — could be taken ad *194 vantage of on a motion to nonsuit, but it is now well settled that such may be done when the contributory negligence of the plaintiff is established by his own evidence, as he thus proves himself out of court. Wright v. R. R., 155 N. C., 325, 71 S. E., 306; Horne v. R. R., 170 N. C., 645, 87 S. E., 523, and cases there cited.

Speaking to the subject in Battle v. Cleave, 179 N. C., 112, 101 S. E., 555, Hoke, J., delivering the opinion of the Court, said:

“It is earnestly insisted for defendant that judgment of nonsuit should have been entered by reason of contributory negligence on the part of the plaintiff. Such a judgment has been given in rare instances on the grounds suggested, and where, from the proof offered in support of plaintiff’s cause of action, it clearly appears that his own negligence has been the proximate cause of the injury or one of them. Dunnevant v. R. R., 167 N. C., 232; Mitchell v. R. R., 153 N. C., 116; Strickland v. R. R., 150 N. C., 4.
“The burden of showing contributory negligence, however, is on the defendant, and the motion for nonsuit may never be allowed on such an issue where the controlling and pertinent facts are in dispute, nor where opposing inferences are permissible from plaintiff’s proof, nor where it is necessary in support of the motion to rely, in whole or in part, on evidence offered for the defense. Russell v. R. R., 118 N. C., 1098; House v. R. R., 131 N. C., 103.”

Again, in Moseley v. R. R., 197 N. C., 628, 150 S. E., 184, Clarkson, J., speaking for the Court, observed: “A serious and troublesome question is continually arising as to how far a court will declare certain conduct of a defendant negligence, and certain conduct of a plaintiff contributory negligence, and take away the question of negligence and contributory negligence from the jury. The right of trial by jury should be carefully preserved, and if there is any evidence, more than a scintilla, it is a matter for the jury and not the court.”

The issue of contributory negligence in the instant case was for the jury.

'Whether the defendant’s violation of the traffic ordinance should be regarded as negligence per se, or only prima facie, is controlled by what was said in Hinshaw v. Pepper, 210 N. C., 573; Goss v. Williams, 196 N. C., 213, 145 S. E., 169; S. v. Cope, 204 N. C., 28, 167 S. E., 456. Compare Exum v. Baumrind, 210 N. C., 650; Kelly v. Hunsucker, ante, 153.

No error.