Carolina Scenic Stages v. Lowther

64 S.E.2d 846 (1951) 233 N.C. 555

CAROLINA SCENIC STAGES
v.
LOWTHER.

No. 524.

Supreme Court of North Carolina.

May 2, 1951.

Covington & Lobdell, Charlotte, for plaintiff, appellant.

Helms & Mulliss and James B. McMillan, Charlotte, for defendant, appellee.

STACY, Chief Justice.

On sharply conflicting evidence, the jury has found both drivers responsible for the collision in suit. Hence, they never reached the issue of damages, either for the plaintiff or for the defendant on his counterclaim. Neither was allowed to recover and the plaintiff was taxed with the costs.

The evidentiary exceptions are not of sufficient moment to require any discussion or elaboration. They are too attenuate to have affected the outcome of the trial. It would be a work of supererogation and repetition to discuss them seriatim. Indeed, they seem to have been abandoned as they are not discussed in plaintiff's brief.

The plaintiff also objected and excepted to the submission of the issue of contributory negligence, but as this exception is not discussed on brief, it is regarded as feckless and deemed abandoned. Weaver v. Morgan, 232 N.C. 642, 61 S.E.2d 916; Rule 28, 221 N.C. 562.

The exceptions to the charge are likewise too unsubstantial to require any extended discussion. The first discussed on brief and regarded as the most important perhaps will suffice to show their attenuateness: The jury was told the defendant's negligence must be "the proximate cause" of the collision to warrant the jury in answering the first issue for the plaintiff; whereas, the plaintiff's negligence need be only "one of the proximate causes" to justify an affirmative answer to the second issue, i. e., the issue of contributory negligence. The difference in these instructions on the two issues submitted is now urged as constituting reversible error.

The plaintiff is no position to take advantage of any error committed on the first issue as this issue was answered in its favor. DeWeese v. Belk's Department Store, 233 N.C. 281, 63 S.E.2d 538. So we pass to the instruction on the second issue. We have consistently held that in actions like the present the plaintiff's contributory negligence, in order to bar recovery, need not be the sole proximate cause of the injury as this would exclude any idea of negligence on the part of the defendant. Godwin v. Atlantic Coast Line R. Co., 220 N.C. 281, 17 S.E.2d 137; Absher v. City of Raleigh, 211 N.C. 567, 190 S.E. 897. It is enough if it contribute to the injury as a proximate cause, or one of them. McKinnon v. Howard Motor Lines, 228 N.C. 132, 44 S.E.2d 735; Wright v. D. Pender Grocery Co., 210 N.C. 462, 187 S.E. 564. The very term "contributory negligence" ex vi termini implies or presupposes negligence on the part of the defendant. Gold v. Kiker, 218 N.C. 204, 10 S.E.2d 650; Fulcher v. Pine Lumber Co., 191 N.C. 408, 132 S.E. 9. The plaintiff is barred from recovery, in an action like the present, when his negligence concurs and cooperates with the negligence of the defendant in proximately producing the injury. Gordon v. Sprott, 231 N.C. 472, 57 S.E.2d 785; Moore v. Boone, 231 N.C. 494, 57 S.E.2d 783. The exception to the instruction on the second issue is without merit and is not sustained. Nor is there any contradiction or confusion in the instructions on the two issues. But even if there were, the plaintiff could complain only of erroneous instructions hurtful to it. Mott v. Western Union Tel. Co., 142 N.C. 532, 55 S.E. 363.

The remaining exceptions to the charge, 18 in number, are of similar criticisms to sentences or expressions which may be readily upheld as correct or nonprejudicial under the rule of contextual construction.

On the record as presented, no error has been discovered which would seem to call for a disturbance of the result below. The verdict and judgment will be upheld.

No error.