Pugh v. Smith , 247 N.C. 264 ( 1957 )

100 S.E.2d 503 (1957) 247 N.C. 264

John D. PUGH
v.
Herman Leo SMITH.

No. 398.

Supreme Court of North Carolina.

November 27, 1957.

Fred M. Parrish, Jr., McKeithen, Graves, & Robinson, Winston-Salem, by Norwood Robinson, Winston-Salem, for plaintiffappellant.

Ratcliff, Vaughn, Hudson, Ferrell & Carter, Winston-Salem, by Ralph M. Stockton, Jr., Winston-Salem, for defendant-appellee.

HIGGINS, Justice.

Throughout the charge the court instructed the jury that in order to prevail on the first issue (defendant's negligence) the plaintiff must establish by the greater weight of the evidence that the defendant was negligent and that his negligence was the proximate cause of the plaintiff's injury. The charge placed too great a burden upon the plaintiff. A similar error is treated at length in the case of Price v. Gray, 246 N.C. 162, 97 S.E.2d 844.

When the pleadings and the evidence involve the negligence of a person other than the defendant, it is only necessary for the plaintiff to show the defendant's negligence was one of the proximate causes of the injury. In this case the negligence of both parties is involved. If either can prove by the greater weight of the evidence that the other's negligence was one of the proximate causes of the injury, he is entitled to have the appropriate issue answered in his favor. Each party is entitled to an equal chance before the jury. Each should carry an equal burden. On the authority of Price v. Gray, supra, and the cases there cited, this case is remanded to the Superior Court of Forsyth County for a

New trial.