~We pretermit discussion of the objections and exceptions to the admission and exclusion of evidence, since they do not disclose reversible error. Mostly, they relate to warnings which were given to the plaintiff’s intestate while he was in the tree and are, therefore, within the res gestee. Harrill v. R. R., 132 N. C., 655, 44 S. E., 109.
But the plaintiff contends strongly that the trial court — the general county court of Buncombe County — committed error in declining to submit the tendered issue as to the creation and maintenance of a dangerous nuisance, by reason of which, it is contended, plaintiff’s intestate lost his life. Counsel on that side say that the evidence supports the theory advanced in the pleading that there existed such a nuisance separate and apart from any mere question of negligence; and the issue confining the investigation to the negligence of the defendant did not lead to an affirmance or a disaffirmance of the wrongful conduct of defendant in the creation and maintenance of the nuisance, from which it is contended the death of plaintiff’s intestate resulted.
Admittedly there may be nuisances which do not involve negligence and which may be the cause of actionable injury and damage; 45 C. J., 634; 46 C. J., 663. Distinctions involving a recognition of this principle are the subject of discussion in Swinson v. Realty Co., 200 N. C., 276, 156 S. E., 545, and Godfrey v. Power Co., 190 N. C., 24, 128 S. E., 485, and numerous cases which may be cited from other courts. The philosophic discussion of the matter in these authorities must serve to supplement our want of further analysis here. ~We desire only to say that the recognition of a nuisance, sans negligence, does not mean that the conduct and conditions brought to our attention in the instant case must necessarily be so classed. Indeed, taking the evidence according to its reasonable inferences, the nuisance, if it may be called such, was negligence-born, and must, in the legal sense, make obeisance to its parentage.
Doctrinal distinctions may not be pressed too far. To be helpful in administration and to lend themselves in aid of justice, they must be kept close to the realities. After all, it is the factual situation out of which the legal consequences flow, not the formal aspect, or the technical label which we conveniently apply.
Under the facts of this case, we see no transmutation of negligence into nuisance which would prevent the rights and liabilities of the parties from being properly probed by the issues submitted to the jury. As adequately expressing the opinion of this Court upon the matter, we quote from an opinion written by Chief Judge Cardozo of the New York Court of Appeals, subsequently renowned Associate Justice of the United States Supreme Court, in McFarland v. City of Niagara Falls, 57 A. L. R., 1, 247 N. Y., 340, 160 N. E., 391: “Not a little confusion runs through *122the reports as to the effect of contributory negligence upon liability for nuisance. Statements appropriate enough in the application to nuisance of one class have been thoughtlessly transferred to nuisance of another. There has been forgetfulness at times that the forms of actions have been abolished and that liability is dependent upon the facts and not upon the name. Confining ourselves now to the necessities of the case before us, we hold that whenever a nuisance has its origin in negligence one may not avert the consequences of his own contributory negligence by affixing to the negligence of the wrongdoer the label of nuisance.”
Whether plaintiff’s intestate might not be independently negligent, so as to bar his recovery, by reason of his attempt to abate a nuisance of the character described, and in the manner of his attack, might have been a question on defendant’s motion as to judgment of nonsuit upon any aspect of the case. The rule of the prudent man might dictate that he leave the nuisance alone when it showed no present disposition to molest him. Hendrix v. R. R., 198 N. C., 142, 150 S. E., 873; McFarland v. City of Niagara Falls, supra.
Had the defendant been compelled to bring up the refusal of its motion for review here, it is difficult to see how that relief could have been denied on the plaintiff’s evidence.
We are unable to help the plaintiff upon the outcome of the first issue, and the second was not reached.
We find
No error.