Wright v. D. Pender Grocery Co.

• Decision Date: 23 September 1936
• Docket Number: 30.
• Parties: WRIGHT v. D. PENDER GROCERY CO.
• Court: North Carolina Supreme Court

187 S.E. 564

210 N.C. 462

WRIGHT v. D. PENDER GROCERY CO.

No. 30.

Supreme Court of North Carolina

September 23, 1936

Appeal from Superior Court, Pasquotank County; Small, Judge.

Action by M. G. Wright, trading as Wright Purity Ice & Fuel Company against D. Pender Grocery Company. From a judgment for plaintiff, defendant appeals.

New trial.

In action for damages to truck occurring in accident in Virginia, omitting from instruction charging that defendant had burden to prove that plaintiff's negligence was proximate cause of damages element of concurring or co-operative negligence held error.

Action to recover damages for injury to plaintiff's truck alleged to have been caused by the negligence of the defendant.

Upon allegations of negligence, contributory negligence and damages, and the testimony in support thereof, appropriate issues were submitted to the jury and all answered in favor of the plaintiff, and from judgment in accordance therewith defendant appealed.

Worth & Horner, of Elizabeth City, for appellant.

J. H Leroy, Jr., of Elizabeth City, for appellee.

DEVIN Justice.

The only assignment of error is to the judge's charge on the issue of contributory negligence. The defendant complains that the court below failed to properly instruct the jury on this phase of the case. It appears from the record that the court, after properly defining negligence and proximate cause, used this language with reference to the first issue "If you are satisfied by the greater weight of the evidence, first, that the defendant was negligent, and second, that the defendant's negligence was the proximate cause of the injury, you would answer the first issue yes. If not so satisfied, you would answer it no," and that he charged the jury on the second issue as follows: "The burden of that issue is on the D. Pender Company to satisfy you, by the greater weight of the evidence, the same degree of proof, that it was the plaintiff's negligence that caused the injury to plaintiff's truck. If you are satisfied, by the greater weight of the evidence, that the plaintiff's negligence was the proximate cause of plaintiff's injury to his truck, you will answer the second issue yes. If you are not so satisfied, you will answer the second issue no."

The defendant complains that the vice of this charge consisted in the failure to properly define contributory negligence and the omission from the instructions thereon of the element of concurring or cooperating negligence. And from the record before us we are constrained to the view that the learned judge inadvertently overlooked this material aspect of the case.

In Moore v. Iron Works, 183 N.C. 438, 111 S.E. 776 777, Stacy, C.J., in accord with the uniform decisions of this court, defined contributory negligence as follows: "Contributory negligence, such as will defeat a recovery in a case like the one at bar, is a negligent act of the plaintiff, which, concurring and co-operating with the negligent act of the defendant, thereby...