Plaintiff assigns as error the overruling of the demurrer interposed to the second further answer and defense, the failure of the court to set aside the verdict on the second issue, and certain portions of the charge to the jury.

The allegations of the pleadings tend to show a contractual relationship between the original plaintiff and Singletary. Therefore, we are of the opinion that the doctrine of assumption of risk is available to this defendant as a defense. Clark v. Freight Carriers, 247 N.C. 705, 102 S.E. 2d 252. We note from the record that defendant tendered an issue on assumption of risk which was declined by the court. The question of the sufficiency of the evidence to support such an issue is not before us.

We think plaintiff’s exceptions to the charge of the court are well taken. The court instructed the jury that the burden of proof on the second issue was on the defendant. There followed immediately this: “Now, if the defendant has failed to satisfy you on this second issue, and to satisfy you by the greater weight of the evidence, or after a fair and impartial consideration of all the evidence, you are unable to determine where the truth lies on this second issue, then it would be your duty to answer this issue YES.” While obviously an inadvertent error, we think this error and others in the charge necessitate a new trial. After the court had discussed all four issues, he advised the jury that he would read what the Supreme Court has said constitutes negligence and contributory negligence. *635He did then read a discussion of negligence, proximate cause, and foreseeability. He then instructed the jury as to the interest or lack of interest of a witness, his own lack of opinion and the duty of the jury to recollect the facts. He then restated the issues and after re-, stating the first issue said “and I believe I did not tell you that contributory negligence is just simply negligence on the part of the plaintiff. That is the only reason it is called contributory negligence.” After instructing the jury again that if they answered the first issue YES, they would consider the second issue, the charge was as follows: “The burden shifts on the defendant to satisfy you, and satisfy you by the greater weight of the evidence, that the plaintiff, Perry Clay Williams, now deceased, contributed to his own damage, to his own injuries, in any manner in which he performed his work on this car, or in any other way while he was on the premises of the defendant then you would answer that issue YES. If he has failed to satisfy you and satisfy you by the greater weight of the evidence, or if you cannot determine where the truth is, then you would answer that issue NO.”

The portions of the charge of the court having to do with the second issue are, we think, so susceptible of creating confusion in the minds of the jury that they constitute prejudicial error, nor can we say that the charge, when read as a whole, presents the law of the case to the jury in such a manner as to leave no reasonable cause to believe that the jury was misled or misinformed.

Plaintiff also contends that the evidence was insufficient to support the verdict of the jury on the second issue. Since there must be a new trial, we refrain from discussing the sufficiency of the evidence.

New trial.