{ "id": 8627036, "name": "M. G. WRIGHT, Trading as WRIGHT PURITY ICE AND FUEL COMPANY, v. D. PENDER GROCERY COMPANY", "name_abbreviation": "Wright v. D. Pender Grocery Co.", "decision_date": "1936-09-23", "docket_number": "", "first_page": "462", "last_page": "464", "citations": [ { "type": "official", "cite": "210 N.C. 462" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "102 Va., 209", "category": "reporters:state", "reporter": "Va.", "case_ids": [ 2024537 ], "opinion_index": 0, "case_paths": [ "/va/102/0209-01" ] }, { "cite": "99 Va., 763", "category": "reporters:state", "reporter": "Va.", "case_ids": [ 2016921 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/va/99/0763-01" ] }, { "cite": "115 Va., 643", "category": "reporters:state", "reporter": "Va.", "case_ids": [ 4801374 ], "opinion_index": 0, "case_paths": [ "/va/115/0643-01" ] }, { "cite": "184 N. C., 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269625 ], "opinion_index": 0, "case_paths": [ "/nc/184/0179-01" ] }, { "cite": "196 N. C., 510", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627944 ], "opinion_index": 0, "case_paths": [ "/nc/196/0510-01" ] }, { "cite": "198 N. C., 795", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621169 ], "opinion_index": 0, "case_paths": [ "/nc/198/0795-01" ] }, { "cite": "192 N. C., 522", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624596 ], "opinion_index": 0, "case_paths": [ "/nc/192/0522-01" ] }, { "cite": "191 N. C., 549", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630360 ], "opinion_index": 0, "case_paths": [ "/nc/191/0549-01" ] }, { "cite": "183 N. C., 438", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656651 ], "opinion_index": 0, "case_paths": [ "/nc/183/0438-01" ] } ], "analysis": { "cardinality": 297, "char_count": 5460, "ocr_confidence": 0.531, "pagerank": { "raw": 2.2359317374395312e-07, "percentile": 0.7795087667273266 }, "sha256": "a344c53afd20b36749fd5b1eff159687b8f985fef35b49ebf4f6c2190e2e9bee", "simhash": "1:9fa0cd980b0986fd", "word_count": 907 }, "last_updated": "2023-07-14T17:57:05.250790+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "M. G. WRIGHT, Trading as WRIGHT PURITY ICE AND FUEL COMPANY, v. D. PENDER GROCERY COMPANY." ], "opinions": [ { "text": "Devin, J.\nThe only assignment of error is to the judge\u2019s 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: \u201cIf you are satisfied by the greater weight of the evidence, first, that the defendant was negligent, and, second, that the defendant\u2019s negligence was the proximate cause of the injury, you would answer the first issue 'Yes.\u2019 If not so satisfied, you would answer it 'No,\u2019\u201d and that be charged the jury on the second issue as follows: \u201cThe 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\u2019s negligence that caused the injury to plaintiff\u2019s truck. If you are satisfied, by the greater weight of the evidence, that the plaintiff\u2019s negligence was the proximate cause of plaintiff\u2019s injury to his truck, you will answer the second issue 'Yes.\u2019 If you are not so satisfied, you will answer the second issue 'No.\u2019 \u201d\nThe 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.\nIn Moore v. Iron Works, 183 N. C., 438, Stacy, C. J., in accord with the uniform decisions of this Court, defined contributory negligence as follows: \u201cContributory 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 cooperating with the negligent act of the defendant, thereby becomes the real, efficient, and proximate cause of the injury, or the cause without which it would not have occurred.\u201d Boswell v. Hosiery Mills, 191 N. C., 549; Inge v. R. R., 192 N. C., 522.\nThe plaintiff\u2019s negligence need not have been the sole proximate cause of the injury. If his negligence was one of the proximate causes, the plaintiff would not be entitled to recover. To charge the jury that the burden was on the defendant to show that the plaintiff\u2019s negligence was the proximate cause of the injury would exclude the idea of the concurring negligence of both plaintiff and defendant proximately contributing to the injury. Scott v. Tel. Co., 198 N. C., 795; Lunsford v. Mfg. Co., 196 N. C., 510; West Const. Co. v. R. R., 184 N. C., 179.\nThe injury complained of occurred in the State of Virginia, and the courts of that.state have held instructions similar to those complained of in the case at bar to be erroneous in tbe respects herein pointed out. Powhatan Lime Co. v. Affleck's Administrator, 115 Va., 643; Norfolk & Western R. R. v. Cromer's Administratrix, 99 Va., 763; Richmond Traction Co. v. Martin's Administrator, 102 Va., 209. As was said by Keith, P. J., in Norfolk & Western R. R. v. Cromer\u2019s Administratrix, supra: \u201cThe very term \u2018contributory negligence\u2019 implies that it need not be the exclusive cause of the injury. It is enough if it contributes to the injury.\u201d\nThe plaintiff, however, argues that there was here no evidence of contributory negligence, and that any omission on the part of the judge in his charge on this issue was immaterial and harmless.\nWe cannot concur in this view. Contributory negligence was set up in the answer, and after the evidence was presented, the court submitted the proper issue addressed to the question thus raised. The evidence on this issue was sufficient to warrant its submission to the jury.\nFor the reasons herein set out, there must be a\nNew trial.", "type": "majority", "author": "Devin, J." } ], "attorneys": [ "J. H. LeBoy, Jr., for plaintiff, appellee.", "Worth & Horner for defendant, appellant." ], "corrections": "", "head_matter": "M. G. WRIGHT, Trading as WRIGHT PURITY ICE AND FUEL COMPANY, v. D. PENDER GROCERY COMPANY.\n(Filed 23 September, 1936.)\n1. Negligence D d \u2014 Instruction held for error in failing to charge that contributory negligence bars recovery if it concurs in producing injury.\nAn instruction that the burden was on defendant to prove that plaintiff\u2019s negligence was the proximate cause of the injury in order for defendant to sustain the defense of contributory negligence is held, erroneous for failing to instruct on the element of concurring or cooperating negligence, it not being necessary that contributory negligence be the sole proximate cause of the injury in order to bar recovery, it being sufficient if such negligence is one of the proximate concurring causes of the injury.\n3. Appeal and Error J e\u2014\nAn erroneous instruction upon a defense raised by the answer and supported by defendant\u2019s evidence cannot be held harmless upon defendant\u2019s appeal upon plaintiff\u2019s contention that the error was immaterial because defendant\u2019s evidence was insufficient to support the defense.\nAppeal by defendant from Small, J., at March Term, 1936, of PasquotaNK.\nNew trial.\nAction to recover damages for injury to plaintiff\u2019s truck, alleged to have been caused by the negligence of the defendant.\nUpon 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.\nJ. H. LeBoy, Jr., for plaintiff, appellee.\nWorth & Horner for defendant, appellant." }, "file_name": "0462-01", "first_page_order": 528, "last_page_order": 530 }