Howard v. Bingham

The only error assigned in defendants’ appeal was the denial of their motion for judgment of nonsuit, and the only ground upon which it was argued that this motion should have been sustained was that on plaintiff’s testimony the injury to his automobile proximately resulted from his own contributory negligence.

While contributory negligence is an affirmative defense and within the rule that ordinarily nonsuit will not be allowed in favor of the party upon whom rests the burden of proof (Sims v. Lindsay, 122 N.C. 678, 30 S.E. 19), the principle is well settled that when the plaintiff’s own…