Noah v. Southern Railway Co.
Noah v. Southern Railway Co.
Opinion of the Court
A careful perusal of the record leaves us with the impression that a new trial must be awarded for error in the charge on the issue of contributory negligence.
“To constitute contributory negligence,” the jury was instructed on several occasions, “the defendants must satisfy you on the second issue, by the greater weight of the evidence, that the plaintiff was negligent,
The objection to this instruction is, that it omits the essential elements of concurring negligence, as pointed out in Brown v. Montgomery Ward, 217 N. C., 368, 8 S. E. (2d), 199, and Wright v. Grocery Co., 210 N. C., 462, 187 S. E., 564, where new trials were awarded on similar instructions.
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. Tyson v. Ford, 228 N. C., 778, 47 S. E. (2d), 251. It is enough if it contribute to the injury as a proximate cause, or one of them. Godwin v. R. R., 220 N. C., 281, 17 S. E. (2d), 137. 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. Tarrant v. Bottling Co., 221 N. C., 390, 20 S. E. (2d), 565.
For error as indicated a new trial seems necessary. It is so ordered.
New trial.
Reference
- Full Case Name
- W. L. NOAH v. SOUTHERN RAILWAY CO. and GLOVER B. REYNOLDS v. SOUTHERN RAILWAY CO.
- Cited By
- 2 cases
- Status
- Published