Upon the conclusion of the evidence, defendant moved the judge to instruct the jury that, considering all the evidence, it would be their duty to answer the second issue, to-wit, "Did plaintiff, by his own negligence, contribute to his own injury?" "Yes." The judge thereupon intimated that he would so hold and so instruct them. Plaintiff submitted to a nonsuit and appealed.
After carefully reading the evidence of plaintiff and that of defendant (sixty-nine pages of the printed record), we find it to be very conflicting. If the evidence of plaintiff be believed (and it must be accepted as true and all the evidence construed in the most favorable light to him, upon a motion to nonsuit), then the jury would be warranted in finding that he was not negligent. While if that of plaintiff be not believed, and that of defendant should be believed, then the jury would be warranted in finding that he was negligent, and but for such negligence the injury would not have occurred. What is negligence or contributory negligence is a question of law upon a given or ascertained state of facts, to be decided by the court. But when the facts are not ascertained and are in dispute, then negligence becomes a mixed question of law and fact, and it is the duty of the judge to leave the question of fact to be found by the jury, under proper instructions concerning the rule of ordinary care, and to apply the law to the facts as they may find them. Miller v. R. R.,128 N.C. 26, and cases there cited; Moore v. R. R., 128 N.C. 455.
Here the facts were not found and the evidence (105) concerning them conflicting, with the burden of proving contributory negligence resting upon defendant. Laws 1887, ch. 33. So his Honor erred in ruling that he would direct the jury to answer the second issue "Yes." The principle that the court cannot direct a verdict in favor of a party upon whom rests the burden of proof is now too well settled to admit of discussion. Cox v. R.R., 123 N.C. 604, and cases there cited.
Under rule 31 of the Rules of Practice of this Court, plaintiff's motion is allowed, and the entire cost of printing the transcript on appeal will be taxed against defendant.
New trial. *Page 79 Cited: Lindsay v. R. R., 132 N.C. 60; Bessent v. R. R., ib., 946;Graves v. R. R., 136 N.C. 10; Kyles v. R. R., 147 N.C. 396.