McKoy v. Craven, 198 N.C. 780 (1930)

June 6, 1930 · Supreme Court of North Carolina
198 N.C. 780
D. L. McKOY v. A. F. CRAVEN

D. L. McKOY v. A. F. CRAVEN.

(Filed 6 June, 1930.)

Negligence D d — Where issue of contributory negligence is answered in defendant’s favor the plaintiff is not entitled to recover.

Where the issue of negligence and contributory negligence arise in an action for damages to tbe plaintiff’s automobile, there being no issue as to the last clear chance, the plaintiff is not entitled to judgment where the jury answers both issues in the affirmative and awards damages.

Appeal by plaintiff from Shaw, J., at January Term, 1930, of Ieedell. No error.

The verdict was as follows:

1. Was the plaintiff’s car damaged by the negligence of the defendant, as alleged in the complaint? Answer: Yes.

*7812. Did tbe plaintiff, by bis own negligence, contribute to bis damage, as alleged in tbe answer? Answer: Yes.

What amount, if any, is tbe plaintiff entitled to recover of tbe defendant? Answer: $50.00.

It was thereupon adjudged that tbe plaintiff take nothing by bis action and that the defendant recover bis costs.

Zeb V. Turlington for plaintiff.

Raymer & Raymer for appellee, Albert L. Storr.

Adams, J.

Tbe plaintiff and tbe defendant were equally in fault. If one can recover so can the other. Thus there would be “mutual faults and mutual recoveries, which would contradict tbe saying that ‘law is tbe perfection of reason.’” Herring v. R. R., 32 N. C., 402. It is settled by tbe decisions of this Court that tbe plaintiff is not entitled to damages- upon tbe verdict. Baker v. R. R., 118 N. C., 1015; Sasser v. Lumber Co., 165 N. C., 242; Carter v. R. R., ibid., 244, 255; Holton v. Moore, ibid., 549. It will be noted that there is no issue as to tbe last clear chance. Gunter v. Wicker, 85 N. C., 310; Edge v. R. R., 153 N. C., 212. Tbe appellant cites Wood v. Jones, ante, 356; but in that case tbe second issue was whether tbe defendant, not tbe plaintiff, bad by bis own negligence contributed to bis injury. A new trial was given because tbe verdict was indefinite.

No error.