Liske v. Walton

BkogdeN, J.

Tbe court charged tbe jury as follows: “Tbe defendant sets up contributory negligence and alleges that tbe plaintiff’s wife was guilty of contributory negligence. Tbe court does not recall any evidence that would warrant you in passing on such issue, and therefore does not submit an issue as to that.” Tbe defendant in apt time tendered an issue as to contributory negligence which was refused, and to the refusal of tbe court to submit an issue of'contributory negligence and to tbe charge as set out, tbe defendant excepted and assigned tbe same as error.

Stacy, C. J., writing in Davis v. Jeffreys, 197 N. C., 712 , said: “Contributory negligence, such as will defeat a recovery in an action like tbe present, is a negligent act of plaintiff, which concurring and cooperating with tbe negligent act of defendants, thereby becomes tbe real, efficient, and proximate cause of injury, or tbe cause without which the injury would not have occurred.” There is no essential difference between negligence and contributory negligence, except that in actions like the present one, the negligence of plaintiff is called contributory negligence.

Moore v. Iron Co., 183 N. C., 438 , 111 S. E., 776 . If the testimony of defendant is to be accepted, the plaintiff’s car was approaching the intersection at a rapid rate of speed and in violation of the statute. Under our system of determining disputed issues it is for the jury to say whether the plaintiff was guilty of negligence and whether such negligence cooperated or concurred with the negligence of defendant, if any, as a proximate cause of the injury complained of.

¥e are of the opinion that there was sufficient evidence of contributory negligence to be submitted to the jury.

New trial.