Gibson v. Whitton

The defendant urges that his motion for judgment as of nonsuit should have been allowed upon the ground that the plaintiff’s evidence establishes contributory negligence as a matter of law.

Contributory negligence is an affirmative defense which must be pleaded and proved. G.S. 1-139. Even so, nonsuit is proper when the plaintiff’s own evidence establishes this defense (Bundy v. Powell, 229 N. C., 707, 51 S.E. 2d 307), but it may not be entered when it is necessary to rely in whole or in part upon the defendant’s evidence, or when diverse inferences upon the question are reasonably deducible…