Jones v. Holt

A defendant, relying upon contributory negligence for his defense, must allege in his answer facts which, if true, constitute negligence by the plaintiff and must prove the negligence so alleged. G.S. 1-139; Moore v. Hales, 266 N.C. 482, 146 S.E. 2d 385. The burden of proof being upon the defendant, the issue of contributory negligence should not be submitted to the jury if the evidence is not sufficient to support an affirmative finding.

In determining the sufficiency of the evidence to justify the submission of this issue to the jury, we must consider the defendant’s evidence in the light…