Bogle v. Duke Power Co. ( 1975 )

Judge Parker

concurring:

I agree that summary judgment for defendant was proper and vote to affirm. There was no genuine issue as to the material facts relevant to the issue of negligence on the part of defendant and on those facts there was simply no showing that defendant was in any way negligent. I would affirm for that reason without reaching the issue of contributory negligence. As to that issue, the only evidence to show the conduct of plaintiff’s intestate immediately prior to his death was that contained in the affidavit of Mode. That affidavit was presented by the defendant as an attachment to its motion for summary judgment. Since the burden of proof on the issue of contributory negligence was on the defendant, I do not believe that summary judgment for defendant on that issue would be proper where, as here, the credibility of defendant’s witness is involved. A defendant’s evidence may not be considered as a basis for granting a directed verdict in his favor on the ground of plaintiff’s contributory negligence. Connor v. Robbins, 268 N.C. 709, 151 S.E. 2d 573 (1966) ; Pruett v. Inman, 252 N.C. 520, 114 S.E. 2d 360 (1960). I see no reason why the same principle should not apply when passing upon a defendant’s motion for summary judgment made upon the same ground.