(after stating the facts). The issues are made by the allegations of the complaint and the denials of the answer; or when affirmative matter of defence is averred in the answer, by such averment and the replication, but it does not necessarily follow, that every allegation of a fact which is denied, must be submitted to the jury as an issue. The issues submitted should be only those evolved from the pleadings, necessary to determine the controversy, and every issue of fact necessary for that purpose ought to be either distinctly submitted, or, under the instruction of the Court, clearly embraced in some issue that is submitted.
Was the defendant entitled to have any one of the issues tendered by him! submitted to the jury? The allegation of negligence is distinctly denied, and contributory negligence on the part of the plaintiff distinctly averred, and this raised *85an issue, which the defendant had a right to have submitted to the jury, unless so comprehended in some other issue, that, under the instruction of the Court, the question of contributory negligence could be fairly presented to the jury, as was the case in Scott v. W & W. R. R. Co., 96 N. C., 428.
When this case was before this Court at a former Ternq 94 N. C., 625, it appears that the issues submitted to the jury were:
“1st. Was the plaintiff’s injury caused by the defendant’s negligence ?
“2d. Was the plaintiff’s negligence contributory thereto?
“3d. What damages is he entitled to?”
One of the exceptions to the ruling of the Court below upon that appeal, was the refusal of the issue tendered by the defendant:
“Was the injury caused by the negligence of a servant of the company; if so, which one?”
We think the defendant was entitled to this issue. Perhaps, under proper instructions from the Court in regard to the law as applicable to the different phases in which the evidence might be viewed by the jury, it might be included in the first issue that was submitted, but there was no instruction given the jury as to what constituted a fellow-servant, or of contributory negligence in relation thereto, and taken in connection with the third issue, which is not eliminated from any allegation in the complaint and denial in the answer, we think the issue as submitted w*as calculated to mislead the jury, and that the defendant was entitled to the first four issues tendered. With proper instructions from the Court, every question necessary to decide the matter in controversy can be presented to the jury, and answered under these issues.
We think there was error in the refusal to submit the issues tendered, and that this error was not cured by those submitted, or by any instruction of his Honor to the jury, *86and this renders it unnecessary for us to consider the other exceptions.
The defendant is entitled to a new trial. Let this be certified.