Ogle Ex Rel. Ogle v. Gibson

Supreme Court of North Carolina
Ogle Ex Rel. Ogle v. Gibson, 198 S.E. 598 (N.C. 1938)
214 N.C. 127; 1938 N.C. LEXIS 282
Seawell

Ogle Ex Rel. Ogle v. Gibson

Opinion of the Court

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.

Reference

Full Case Name
RAY OGLE, by His Next Friend, GRADY OGLE, v. C. L. GIBSON and GIBSON-HOWELL COMPANY, INC.
Cited By
3 cases
Status
Published