187 S.E. 564 | N.C. | 1936
Action to recover damages for injury to plaintiff's truck, alleged to have been caused by the negligence of the defendant.
Upon allegations of negligence, contributory negligence, and damages, and the testimony in support thereof, appropriate issues were submitted to the jury and all answered in favor of the plaintiff, and from judgment in accordance therewith defendant appealed. *463 The only assignment of error is to the judge's charge on the issue of contributory negligence. The defendant complains that the court below failed to properly instruct the jury on this phase of the case. It appears from the record that the court, after properly defining negligence and proximate cause, used this language with reference to the first issue: "If you are satisfied by the greater weight of the evidence, first, that the defendant was negligent, and, second, that the defendant's negligence was the proximate cause of the injury, you would answer the first issue `Yes.' If not so satisfied, you would answer it `No,' " and that he charged the jury on the second issue as follows: "The burden of that issue is on the D. Pender Company to satisfy you, by the greater weight of the evidence, the same degree of proof, that it was the plaintiff's negligence that caused the injury to plaintiff's truck. If you are satisfied, by the greater weight of the evidence, that the plaintiff's negligence was the proximate cause of plaintiff's injury to his truck, you will answer the second issue `Yes.' If you are not so satisfied, you will answer the second issue `No.' "
The defendant complains that the vice of this charge consisted in the failure to properly define contributory negligence and the omission from the instructions thereon of the element of concurring or cooperating negligence. And from the record before us we are constrained to the view that the learned judge inadvertently overlooked this material aspect of the case.
In Moore v. Iron Works,
The plaintiff's negligence need not have been the sole proximate cause of the injury. If his negligence was one of the proximate causes, the plaintiff would not be entitled to recover. To charge the jury that the burden was on the defendant to show that the plaintiff's negligence was the proximate cause of the injury would exclude the idea of the concurring negligence of both plaintiff and defendant proximately contributing to the injury. Scott v. Tel. Co.,
The injury complained of occurred in the State of Virginia, and the courts of that state have held instructions similar to those complained of *464
in the case at bar to be erroneous in the respects herein pointed out.Powhatan Lime Co. v. Affleck's Administrator,
The plaintiff, however, argues that there was here no evidence of contributory negligence, and that any omission on the part of the judge in his charge on this issue was immaterial and harmless.
We cannot concur in this view. Contributory negligence was set up in the answer, and after the evidence was presented, the court submitted the proper issue addressed to the question thus raised. The evidence on this issue was sufficient to warrant its submission to the jury.
For the reasons herein set out, there must be a
New trial.