N.C.P.I.—Civil 108.75

This issue reads:

"Did (name third party defendant) contribute by his negligence to

the [damage] [injury] to (name plaintiff)?"

The plaintiff in this case, (name plaintiff), has sued only (name

defendant(s)) claiming that [his] [their] negligence was a proximate

cause of plaintiff's [damage] [injury]. The law does not require the

plaintiff to bring suit against all of those who might be liable to him.

The defendant, (name defendant), has filed a complaint against

(name third party defendant). By this procedure, known as a third-party

complaint or cross-action, (name defendant) is attempting to assert a

right of contribution against (name third party defendant).

Defendant, (name defendant), claims, that if he was negligent and

caused [damage] [injury] to plaintiff, which he denies, (name third party

defendant) also was negligent and his negligence also was a proximate

cause of any [damage] [injury] that might have resulted to plaintiff.

If it is established that (name third party defendant) was negligent

and that his negligence was also a proximate cause of any [damage]

[injury], he will be required to contribute to any damages that are

awarded in the claim by (name plaintiff) against (name defendant).

The burden of proof on this issue is on (name defendant) to

establish, by the greater weight of the evidence.

First, that (name third party defendant) was negligent, and

Second, that such negligence was a proximate cause of any

[damage] [injury] to plaintiff along with the negligence of (name

defendant).

When I defined proximate cause,2 I explained that there may be

more than one proximate cause of [an injury] [damage]. Thus separate

and independent acts or omissions of different persons can concur to

produce a single result. If the separate negligent acts or omissions of

[the drivers of two or more vehicles] [two or more persons] happen

concurrently, or in sequence3 so that the conduct of each of those

[drivers] [persons] is a proximate cause producing the injury or damage

complained of, then each is liable for all of the damages suffered. If the

plaintiff does not sue all of these [drivers] [persons] one (or more) of the

defendants may, as in this case, seek to have one (or more) of those not

sued by plaintiff contribute to or share in any damages assessed. This

right of contribution applies even though one may have been more or less

negligent than another.

In this case, the defendant, (name defendant), contends, and the

third party defendant, (name third party defendant), denies, that (name

third party defendant) was negligent in one or more of the following

respects:

(Read all contentions of negligence supported by the

evidence.)

The defendant, (name defendant), further contends and the third

party defendant (name third party defendant) denies, that (name third

party defendant)'s negligence was a proximate cause of plaintiff's

[damage] [injury].

I instruct you that negligence is not to be presumed from the mere

fact of [damage] [injury].

(Give law as to each contention of negligence included

above, using, as appropriate, the instructions numbered

above 200.)

Finally, as to this issue, on which the (name defendant) has the

burden of proof, if you find by the greater weight of the evidence, that at

the time of [the collision] [(describe other occurrence)] that (name third

party defendant) was negligent in any one or more of the (state total

number of contentions) ways I have explained to you and that such

negligence was a proximate cause of the plaintiff's [damage] [injury]

concurring with negligence of (name defendant), then it would be your

duty to answer this issue "Yes," in favor of (name defendant).

If, on the other hand, you fail to find such negligence, proximate

cause then it would be your duty to answer this issue "No," in favor of

(name third party defendant)