N.C.P.I.—Civil 805.69

This issue reads:

"Did the plaintiff by his own negligence, contribute to his [injury]

[damage]?"

You will answer this issue, only if you have answered the issue as

to the defendant's negligence "yes" in favor of the plaintiff.

On this issue the burden of proof is on the defendant. This means

that the defendant must prove, by the greater weight of the evidence,

that the plaintiff was negligent and that such negligence was a proximate

cause of the plaintiff's own [injury] [damage].

A person traveling on a [street] [sidewalk] [alley] [bridge] [public

way] has a duty to use ordinary care to protect himself from [injury]

[damage].1 He must use his senses to discover and to avoid such

dangerous conditions as would be discovered and avoided by a

reasonable person exercising ordinary care for his own safety under the

same or similar circumstances. If one or more of a person's senses is

impaired because of blindness, deafness, or some other handicap, the

law requires him to take more care and use more vigilant caution for his

own safety on public ways in order to compensate for his handicap.2

Thus, in order to exercise ordinary care for his own safety, a person who

is [blind] [deaf] [(name other handicap)] must exercise that degree of

care which a reasonable person with the same or similar handicap would

exercise under the same or similar circumstances.3 The failure to

exercise such ordinary care would be negligence.4 When the plaintiff's

negligence concurs with the negligence of the defendant in proximately

causing the plaintiff's [injury] [damage], it is called contributory

negligence, and the plaintiff cannot recover.

In this case the defendant contends, and the plaintiff denies, that

the plaintiff was negligent in one or more of the following ways:

(Read all contentions of contributory negligence supported by

the evidence).

The defendant further contends, and the plaintiff denies, that

plaintiff's negligence was a proximate cause of and contributed to the

plaintiff's [injury] [damage].

I instruct you that contributory negligence is not to be presumed

from the mere fact of [injury] [damage].

Finally, as to this issue on which the defendant has the burden of

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

was negligent and that such negligence was a proximate cause of

plaintiff's [injury] [damage], then it would be your duty to answer this

issue "Yes" in favor of the defendant.

If, on the other hand, you fail to so find, then it would be your duty

to answer this issue "No" in favor of the plaintiff.