Sasser v. Hales-Bryant Lumber Co.

BROWN, J. It is settled by tbe decisions of this Court that, in an action of this character, where the jury find that the plaintiff was injured by the negligence of the defendant, and further find that the plaintiff by his own negligence contributed to his injury, and then assess damages, the plaintiff is not entitled to recover, and the defendant is entitled to judgment upon the issues. The force and effect of the establishing of contributory negligence upon the part of the plaintiff is only obviated by the further finding under a third issue-that the defendant by the exercise of ordinary care could have avoided the injury notwithstanding the negligence of the plaintiff. Baker v. R. R., 118 N. C., 1016; Harvell v. Lumber Co., 154 N. C., 262; Hamilton v. Lumber Co., 160 N. C., 51. In the last case Justice Allen says: “The plaintiff cannot recover as long as the answer to the second issue (establishing contributory negligence) stands.” This case cites and approves Baker v. R. R., supra, and holds that the respective findings of negligence, contributory negligence, and damages are not insensible and inconsistent, and the defendant is entitled to judgment. The finding of the jury upon the third issue in this case relating to assumption of risk does not relieve the plaintiff of the consequences of his contributory negligence. “There is a clearly marked line of divide between assumption of risk and contributory negligence,” said Justice Walker in Pigford v. R. R., 160 N. C., 97. They are not one and the same thing, and, as is said by Justice Hoke in Pressly v. Yarn Mills, 138 N. C., 414, “It is usual and in most cases desirable to submit this question to the jury on a separate issue as to assumption of risk.” Affirmed.