Godwin v. Johnson Cotton Co. , 238 N.C. 627 ( 1953 )

JOHNSON, J.,

dissenting: It may be conceded that there is technical inexactness in Judge Burgwyn’s instruction that “contributory negligence is such act or omission on the part of the plaintiff amounting to a want of ordinary care, concurring and cooperating with some act or omission on the part of the defendant as makes the act or omission of the plaintiff the proximate cause ... of the injury . . .” (Italics added.) The approved formula is: “a proximate cause” or “one of the proximate causes,” rather than “the proximate cause.”

However, it is not believed that this could have misled the jury or prejudiced the defendant in view of Judge Burgwyn’s clear explanation of concurrent negligence as an essential element of contributory negligence, repeatedly emphasized throughout the charge.

This was a factually simple case, fully developed by the parties and clearly presented to the jury by Judge Burgwyn in all substantive phases. An examination of the charge as a whole leaves the impression that the jury understood fully the controlling principles of law and were not misled by the inexact expression relied on by the defendant. In order to be entitled to a new trial, the defendant has the burden of establishing not only that error was committed, but that such error was material and prejudicial, since verdicts and judgments are not to be set aside for mere error and no more. Simmons v. Highway Commission, ante, 532; Call v. Stroud, 232 N.C. 478, 61 S.E. 2d 342; Wilson v. Lumber Co., 186 N.C. 56, 118 S.E. 797.

I am constrained to the view that the verdict and judgment below should be upheld.

Devin, C. J., concurs in dissent.