N.C.P.I.—Civil 805.72

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

[damage]?1

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].

The law imposes upon a person the duty to exercise ordinary care

to protect himself from [injury] [damage] and to avoid a known danger.

When a person knows or, in the exercise of ordinary care, should know of

a danger, and where such person has a reasonable choice or option to

avoid that danger, the failure to do so is negligence.2 When the plaintiff's

negligence concurs with the negligence of the defendant in proximately

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

negligence, and the plaintiff cannot recover.3

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

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

(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.