27 S.E. 1002 | N.C. | 1897
This is an action to recover damages received by the plaintiff on account of the alleged negligence of the defendant. It is admitted and found by the jury that defendant was guilty of negligence. And it is found that plaintiff was damaged to the amount of $500, and there is no exception to this finding.
But it is alleged by defendant that plaintiff was also guilty of negligence, and that this was the proximate cause of the injury. It is also contended by the defendant that the court, by its charge in substance, instructed the jury that there was no contributory negligence, in violation of the rule in Hinshaw v. R. R.,
The court can never find nor direct an affirmative finding of the (489) jury. S. v. Shule,
The burden of the issue of contributory negligence was on the defendant. And if there was evidence or such evidence as should go to the jury (Wittkowsky v. Wasson,
The defendant introduced no evidence, but relied on the evidence of the plaintiff. The only evidence introduced by the plaintiff was that of himself and son. And upon a careful examination of this testimony we fail to find that it proves or tends to prove contributory negligence on the part of the plaintiff. The judgment must be
Affirmed.
Cited: Bazemore v. Mountain, ante, 60; Burrus v. Ins. Co., ante, 65;Bank v. School Committee, ante, 109; Wood v. Bartholomew,