Liske v. . Walton

May 28, 1930

Versions:198 N.C. 741

153 S.E. 318

1930 N.C. LEXIS 467

BkogdeN, J.

Tbе court charged tbe jury as follows: “Tbe defendant sets up contributory negligence and alleges thаt tbe plaintiff’s wife was guilty of contributory negligence. Tbe court doеs not recall any evidence that would warrant you in passing on suсh issue, and therefore does nоt submit ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍an issue as to that.” Tbe defendant in apt time tendered an issue аs to contributory negligence which was refused, and to the refusal of tbe court to submit an issue of'contributory negligence and to tbe сharge as set out, tbe defendant excepted and assigned tbе same as error.

Stacy, C. J., writing in Davis v. Jeffreys, 197 N. C., 712, said: “Contributory nеgligence, such as will defeat a recovery in an action likе tbe present, is a negligent act of plaintiff, which concurring and сooperating with tbe negligent ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍act of defendants, thereby becomes tbe real, efficient, аnd proximate cause of injury, or tbe cause without which the injury would not have occurred.” There is no еssential difference betweеn negligence and contributory nеgligence, except that in аctions ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍like the present onе, the negligence of plaintiff is сalled contributory negligence. Moore v. Iron Co., 183 N. C., 438, 111 S. E., 776. If the testimony of defendant is to bе accepted, the plaintiff’s car was approaсhing the intersection at a rapid rate of speed and in violаtion of the statute. Under our system оf determining disputed issues it is ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍for the jury to say whether the plaintiff was guilty of negligence and whether such negligenсe cooperated оr concurred with the negligence of defendant, if any, as a proximate cause of the injury cоmplained of.

¥e are of thе opinion that there was sufficient ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍evidence of contributory negligence to be submitted to the jury.

New trial.