King v. Seaboard Air Line Railway Co.

BeogdeN, J. The liability of the defendant in this case is governed by the opinion in Earwood v. R. R., 192 N. C., 27, 133 S. E., 180. See, also, McGee v. Warren, 198 N. C., 672, 153 S. E., 162; Smith v. R. R., ante, 177; North Carolina Law Review, December, 1930, p. 98. The defendant insists that it was the duty of the court to submit an issue of contributory negligence in each case. Of course, issues arise upon the pleadings and must be framed accordingly. Nevertheless, the trial judge is not required to submit an issue to the jury if there is no [400] evidence to support it. Brown v. Kinsey, 81 N. C., 245; Rice v. R. R., 174 N. C., 268, 93 S. E., 774; Hoggard v. Brown, 192 N. C., 494, 135 S. E., 331; McIntosh North Carolina Practice and Procedure, p. 545. The record discloses no evidence of contributory negligence and the ruling of the trial judge was correct. No error.