Noah v. Southern Railway Co.

Stacy, C. J. 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, [177] and that bis negligence was tbe proximate cause of the injury. . . . The mere fact that plaintiff is negligent would not warrant you in answering the issue against the plaintiff. It would be necessary for the defendants to go further and satisfy you, by the greater weight of the evidence, not only that Reynolds was negligent in operating the taxi, but that his negligence was the proximate cause of the injury.” 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.