This is an action to recover damages received by the plaintiff on account of the alleged negligence of the defendant. It is admitted and found by the jury that defendant was guilty of negligence. And it is found that plaintiff was damaged to the amount of $500, and there is no exception to this finding.
But it is alleged by defendant that plaintiff was also guilty of negligence, and that this was the proximate cause of the injury. It is also contended by the defendant that the court, by its charge in substance, instructed the jury that there was no contributory negligence, in violation of the rule in Hinshaw v. R. R., 118 N.C. 1047.
The court can never find nor direct an affirmative finding of the (489) jury. S. v. Shule, 32 N.C. 153. The most the court can do is to instruct the jury, where there is no conflict of evidence, that if they believe the evidence they should find "Yes" or "No," as the case may be. But where there is no evidence, or no such evidence as should be allowed to go to the jury tending to establish the affirmative *Page 365 of the issue in dispute, the court should direct the finding in the negative.
The burden of the issue of contributory negligence was on the defendant. And if there was evidence or such evidence as should go to the jury (Wittkowsky v. Wasson, 71 N.C. 451) tending to establish the affirmative of this issue, and that it might have been reasonably found for the defendant, the charge of the court could not be sustained. Hinshaw v. R.R., supra, but where there is no conflict in the evidence (as in this case), and but one reasonable conclusion could be deduced from it, then the court has the right to direct the finding, if the jury believe the evidence, as a question of law. Hinshaw v. R. R., supra.
The defendant introduced no evidence, but relied on the evidence of the plaintiff. The only evidence introduced by the plaintiff was that of himself and son. And upon a careful examination of this testimony we fail to find that it proves or tends to prove contributory negligence on the part of the plaintiff. The judgment must be
Affirmed.
Cited: Bazemore v. Mountain, ante, 60; Burrus v. Ins. Co., ante, 65;Bank v. School Committee, ante, 109; Wood v. Bartholomew, 122 N.C. 186;House v. Arnold, ib., 222; Mfg. Co. v. R. R., ib., 886; Cable v. R. R.,ib., 897; Johnson v. R. R., ib., 958; Whitley v. R. R., ib., 989; Cox v. R.R., 123 N.C. 607; Gates v. Max, 125 N.C. 143; Neal v. R. R., 126 N.C. 637,648; Holton v. R. R., 127 N.C. 258; Mfg. Co. v. R. R., 128 N.C. 285;Bessent v. R. R., 132 N.C. 944; Kyles v. R. R., 147 N.C. 396.