Opinion

Izard Ex Rel. Izard v. Hickory City Schools Board of Education

  • 68 N.C. App. 625
  • 315 S.E.2d 756
  • 1984 N.C. App. LEXIS 3409
Court
Court of Appeals of North Carolina
Filed
Jun 5, 1984
Status
Published
Author
Phillips
On the bench
Arnold, Webb, Phillips
Cited by
11 cases

The opinion

Judge PHILLIPS

concurring in result.

Though I agree that the order of summary judgment was correctly entered in that the evidence was insufficient to establish defendant Roberts’ negligence, I do not agree that the evidence established plaintiffs contributory negligence as a matter of law. According to his affidavit, plaintiff had no experience at all and very little instruction in handling the particular type saw he was injured by, and it is a matter of common knowledge that the proper use of machines which require coordinating movements of the operator, as this one plainly did, often depends more upon habit *629 and practice than it does thought. In my opinion, plaintiffs failure to do what he had been instructed to do, though evidence of negligence, was also in keeping with his inexperience and inability, and, therefore, no proper basis for concluding that he was con-tributorily negligent as a matter of law. In my view, what the ordinary, reasonable and similarly inexperienced person would do under like circumstances is clearly a question of fact for the jury, rather than a question of law for judges.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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