#### RALPH MOORE v. CHICAGO BRIDGE AND IRON WORKS.

(Filed 3 May, 1922.)

1. Negligence — Contributory Negligence.

There is no essential difference between negligence and contributory negligence, the former applying to the defendant and the latter to the plaintiff, and in either case is the want of due care in doing other than, or failing to do, what a reasonably prudent man would have done under the same or similar circumstances.

2. Same — Proximate Cause.

The plaintiff’s contributory negligence to defeat his recovery in an action to recover damages for a personal injury alleged to have been received through the defendant’s negligence, is such negligent act of commission or omission so concurring and cooperating with the negligent act of the defendant as to become the real, efficient, and proximate cause of the injury the plaintiff has sustained, or the cause without which the injury would not have occurred.

3. Negligence — Comparative Negligence — Statutes—Damages.

The doctrine of comparative negligence is only recognized by our courts in instances coming within the meaning of the Pederal Employers’ Liability Act, and our own statute, C. S., 3467, and then only for the purpose of mitigating the damages or as a partial defense.

4. Same — Contributory Negligence — Instructions—Appeal and Error.

Where the issue of plaintiff’s contributory negligence arises in an employee’s action against a private corporation, an instruction thereon that if the plaintiff’s negligence contributed to his personal injury to the degree that he was “guilty,” without preponderating, the defendant is not entitled to have the issue answered in its favor, for it must outweigh “the contentions of the plaintiff that he did not contribute,” constitutes reversible error to the defendant’s prejudice, being in effect an erroneous charge upon the principle of comparative negligence, inapplicable to the case.

Appeal by defendant from Ray, J., at tbe October Term, 1921, of MecicleNbueg.

Civil action to recover damages for an alleged negligent personal injury.

Plaintiff, an employee of tbe defendant company, was engaged, witb other servants, in tbe work of erecting a steel tower and water tank for tbe Standard Bonded Warehouse Company in tbe city of Charlotte. At tbe time of tbe injury jdaintiff, together witb other employees, was undertaking to move a long pole, similar to a telegraph pole, from tbe platform of tbe warehouse to tbe scaffold around tbe water tank. Tbe pole was being conveyed on a two-wbeeled dolly, or small wooden band truck. When tbe wheels of tbe dolly came to tbe rail at tbe end of tbe platform it was necessary, in order to get tbe wheels over tbe rail and upon tbe bridge leading to tbe tower — an elevation of five or six inches— *439to place two short boards or planks in proper .position so as to easily push the dolly from the platform up to and upon the bridge. The plaintiff selected the plank for the wheel on his side, placed it himself, and was helping tó push the truck or dolly up the boards so placed when the dolly careened or tilted towards him, and he either jumped off ox was knocked off the platform and fell a distance of five or six feet to a lower platform, with the result that his leg was broken.

Defendant pleaded assumption of risk, the fellow-servant rule, and contributory negligence, in that the plaintiff, by his own carelessness and negligence in placing the plank, etc., brought about his own injury.

From a verdict and judgment in favor of plaintiff, the defendant appealed, assigning errors.

D. E. Henderson and T. A. Adams for plaintiff.

E. B. Preston and Wade H. Williams for defendant.

Stacy, J.,

after stating the case: There áre a number of exceptions appearing on the record, but we deem it unnecessary to consider them seriatim, as, in our opinion, a new trial must be awarded for error in the charge on the issue of contributory negligence. Upon this phase of the case his Honor instructed the jury as follows: “So, if you find that the plaintiff in the case, under the contentions which the court will later lay down for you, was guilty of contributory negligence and contributed to the degree that he was guilty, yet it does not predominate,' then the defendant is not entitled to have an issue of contributory negligence answered in its favor; it must prevail by an outweighing of the contentions of the plaintiff that'he did not contribute.”

As we understand this excerpt, to which the defendant has excepted, it embodies and carries with it a statement of the principle of comparing the negligence of the plaintiff with that of the defendant. This doctrine is applicable with us, and then only for the purpose of mitigating the damages or as a partial defense, in cases arising under the Federal Employers’ Liability Act and our own statute, C. S., 3467. Williams v. Mfg. Co., 175 N. C., 226. The instant case comes under neither enactment.

Contributory negligence, such as will defeat a recovery in a case like the one.at bar, is the negligent act of the plaintiff, which, concurring and cooperating with the negligent act of the defendant, thereby becomes the real, efficient, and proximate cause of the injury, or the cause without which the injury would not have occurred. Negligence is doing other than, or failing to do, what a reasonably prudent man would have done under the same or similar circumstances. In short, it is a want of due care; and there is really no distinction or essential difference between *440negligence in tbe plaintiff and negligence in tbe defendant, except tbe plaintiff’s negligence is called contributory negligence. Tbe same rule of due care, wbicb tbe defendant is bound to observe, applies equally to tbe plaintiff; and due care means commensurate care, under tbe circumstances, wben tested by tbe standard of reasonable prudence and foresight. Tbe law recognizes that contributory negligence may be due either to acts of omission or to acts of commission. In other words, tbe lack of diligence, or want of due care, on tbe part of tbe plaintiff, may consist in doing tbe wrong thing at tbe time and place in question, or it may arise from inaction or from doing nothing wben something should have been done. Tbe test is: Did the plaintiff fail to exercise that degree of care wbicb an ordinarily prudent man would have exercised or employed, under tbe same or similar circumstances, and was bis failure to do so tbe proximate cause of bis injury ? If this be answered in tbe affirmative, tbe plaintiff cannot recover in a case like tbe one at bar. O'Dowd v. Newnham (Ga.), 80 S. E., 40. Of course, it is needless to add that under our statute, C. S., 523, where contributory negligence is relied on as a defense, it must be set up in tbe answer and tbe defendant is required to prove it on tbe trial. That is to say, tbe defendant must properly plead tbe negligence of tbe plaintiff as a defense, and be must also assume tbe burden of proving bis allegation of contributory negligence. Jackson v. R. R., 181 N. C., 153; Fleming v. R. R., 160 N. C., 196. See, also, Taylor v. Lumber Co., 173 N. C., 112, on tbe question of proximate cause.

His Honor may have bad in mind what was said in Vann v. R. R., 182 N. C., 570, but there tbe Court was speaking of tbe passive and inactive negligence of tbe plaintiff, and not such as would make him “guilty of contributory negligence,” to use tbe language employed in tbe charge here.

As the other exceptions, in all probability, will not arise on another trial, we shall not consider them now.

New trial.

Adams, J\, concurs in tbe result.