DocketNumber： 93
Judges： Bárnhill, Johnson, Paricer
Filed Date： 2/29/1956
Status： Precedential
Modified Date： 11/11/2024
Supreme Court of North Carolina.
*597 Richard Powell, Greenville, and Taylor & Mitchell, Raleigh, for defendant appellant.
No counsel contra.
BARNHILL, Chief Justice.
The Court in its charge on the second issue instructed the jury as follows:
"The court charges you upon this issue that if the defendant has satisfied you from the evidence and by the greater weight of the evidence that each of the following two essential elements existed with respect to plaintiff's alleged damages, namely: First, that at the time and place in question plaintiff was guilty of negligence in the operation of her automobile, as has been explained to you; and, secondly, that such negligence on the part of the plaintiff was the proximate cause of the collision and of plaintiff's alleged damage, then you will answer the second issue yes.
"On the contrary, if defendant has failed to satisfy you by the greater weight of the evidence then you will answer the second issue no."
To this instruction the defendant duly excepts. The exception must be sustained.
Contributory negligence on the part of the plaintiff presupposes negligence on the part of the defendant, and the jury does not reach the second issue until and unless it has answered the first issue of negligence in the affirmative.
"The plaintiff's negligence need not be the sole proximate cause of the injury to bar recovery, for ``contributory negligence', ex vi termini, signifies contribution rather than independent or sole proximate cause. * * * It is enough if it contribute to the injury as a proximate cause, or one of them. * * * The plaintiff may not recover in an action like the present, when his negligence concurs with the negligence of the defendant in proximately producing the result." Noah v. Southern Ry. Co., 229 N.C. 176, 47 S.E.2d 844; and cases cited; Austin v. Overton, 222 N.C. 89, 21 S.E.2d 887; Godwin v. Johnson Cotton Co., 238 N.C. 627, 78 S.E.2d 772; McKinnon v. Howard Motor Lines, 228 N.C. 132, 44 S.E.2d 735. There are numerous other cases to like effect which we need not here cite.
The indicated error in the charge on contributory negligence entitles the defendant to a new trial. The questions raised by the other exceptive assignments of error may not again arise on the retrial. Hence we refrain from any discussion thereof.
New trial.
*598 PARKER, J., dissents.
JOHNSON, Justice (dissenting).
The error for which this case is being sent back for retrial is essentially the same as was committed in Godwin v. Johnson Cotton Co., 238 N.C. 627, 78 S.E.2d 772. My feeling here, as in that case, is that the error is not of sufficient moment to require retrial. Therefore, for the reasons assigned in my dissent in the Godwin case, I am constrained to disagree with the result reached here.