Ogle Ex Rel. Ogle v. Gibson

198 S.E. 598, 214 N.C. 127, 1938 N.C. LEXIS 282

Opinion

Seawell, J.

The jury might have inferred from the instruction given that the defendants could not prevail on the issue of contributory negligence unless they were free from negligence, placing the burden of such a showing upon the defendants.

There could be no contributory negligence unless the defendants were also negligent. Ballew v. R. R., 186 N. C., 704, 120 S. E., 334. It is the contribution which the plaintiff makes to the negligence of the defendants as the proximate cause of the injury which bars the right to recover. Davis v. Jeffreys, 197 N. C., 712, 150 S. E., 488; Elder v. R. R., 194 N. C., 617, 140 S. E., 298; Construction Co., v. R. R., 185 N. C., 43, 116 S. E., 3.

We consider the instruction on this issue erroneous in this respect, entitling the defendants to a new trial.

We do not consider the other exceptions, since they may not recur on the next trial.

New trial.