“the question of contributory negligence is normally one for the jury”
How later courts described this case
- “the question of contributory negligence is normally one for the jury”
Written by the judges who cited it.
The opinion
Does a witness's isolated answer to a particular question, removed from the totality of the testimony of that witness which explains or qualifies that answer, satisfy our scintilla-of-evidence sufficiency standard? To me, it does not. I believe that we must review all of the testimony of a particular witness to determine whether there is any evidence to take a plaintiff's case or a defendant's affirmative defense to the jury. In this case, if I read only certain of Brown's answers to certain questions addressed to him, I could arrive at a metaphysical judgment that I saw a gleam, glimmer, spark, or trace of evidence from which I could logically infer that Mrs. Creel was contributorily negligent. If I analyze all of Brown's testimony and all other evidence introduced, that gleam, glimmer, spark, or trace disappears, and I am of the opinion that it would be logically unreasonable for a jury to conclude that Mrs. Creel was contributorily negligent. Therefore, I agree that the affirmative defense of contributory *Page 689
negligence should not have been submitted to the jury.