# Absher Ex Rel. Absher v. Miller

> Supreme Court of North Carolina · October 15, 1941 · 220 N.C. 197

URL: https://www.frixlaw.com/law-library/cases/3655166

## Case

- **Full name:** J. K. Absher, by His Next Friend, W. R. Absher v. Rufus Miller and Grady Miller.
- **Court:** Supreme Court of North Carolina
- **Decided:** October 15, 1941
- **Citations:** 220 N.C. 197; 16 S.E.2d 829; 1941 N.C. LEXIS 507
- **Precedential status:** Published
- **Opinion:** Opinion of the court by DeviN
- **Judges:** DeviN
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3655166

## Opinion text

DeviN, J.
The defendants in their answer set up the defense of contributory negligence, and in apt time tendered an issue addressed to that
*198
question, which the court declined to submit. The court also instructed the jury that the plaintiff, due to his tender years, could not be guilty of contributory negligence.
There was evidence tending to support the defendants’ allegation of negligence on the part of the plaintiff, and the father of the plaintiff testified that at the time of the injury the plaintiff was eight years old lacking a few days, and that he was a bright boy.
We are constrained to hold that the court below was in error in the ruling complained of, and that the issue of contributory negligence should have been submitted, with appropriate instruction, under the rule laid down in
Boykin v. R. R.,
211 N. C., 113 , 189 S. E., 177 ;
Morris v. Sprott,
207 N. C., 358 , 177 S. E., 13 ;
Brown v. R. R.,
195 N. C., 699 , 143 S. E., 536 ;
Foard v. Power Co.,
170 N. C., 48 , 86 S. E., 804 .
The defendants’ motion for judgment of nonsuit was properly denied, but for the error pointed out there must be a
New trial.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3655166. Public record. Not legal advice.