Civil action to recover damages for an alleged negligent burning of cotton, insured by plaintiffs and paid for by them under their policies of insurance. Plaintiffs base their right of action on the theory of subrogation. Upon denial of liability and issues joined, the jury returned the following verdict:
"1. Was the cotton of Bethune-Colwell Company (which was insured by the plaintiffs and loss of which was paid for by them) burned by the negligence of the defendant, as alleged in the complaint? A. Yes.
"2. What damage, if any, are the plaintiffs entitled to recover? A. $9,075.86, with interest from time policies were paid."
From a judgment on the verdict in favor of plaintiffs, the defendant appeals, assigning errors. In bar of plaintiff's right to recover, the defendant pleads, and, at the trial, offered evidence tending to show that the burning of the cotton in question was due to the contributory negligence of the owner, Bethune-Colwell Company. In apt time, the defendant tendered the following issue:
"2. Was Bethune-Colwell Company guilty of negligence which contributed to the damages for which this action is brought to recover, as alleged in the answer?"
His Honor declined to submit this issue, doubtless for the reason that the testimony of a number of the defendant's witnesses was to the effect *Page 405 that the agents of the assured, Bethune-Colwell Company, or the owner of the cotton, had cleaned the platform where the cotton was stored, just a short while before the fire, and, hence, if this evidence were believed, no contributory negligence had been shown on the part of the owner. The vice of this ruling lies in the fact that other evidence offered by the defendant was to the contrary. The conflict in the evidence must have been overlooked by the learned judge while busily engaged in the trial of the cause. Smith v. Coach Line, 191 N.C. 589; Shell v. Roseman, 155 N.C. 90.
On the record, we think the defendant is entitled to have the issue of contributory negligence submitted to the jury. Wilson v. Bush, 70 W. Va. 26,73 S.E. 59; Svea Ins. Co. v. Vicksburg S. P. Ry. Co., 153 Fed., 774.
In the case last cited it was held (as stated in the first head-note): "An insurance company, which paid a loss to the owners of cotton destroyed by fire, is subrogated to the right of such owners to maintain an action against a railroad company to recover damages, on the ground that the fire was caused by its negligence, such action being subject to the same defenses that might be invoked against the owners of the cotton had it been brought by them."
For the error, as indicated, there must be a new trial, and it is so ordered.
New trial.