N.C.P.I.—Motor Vehicle 108.75

This issue reads:

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

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

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

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

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

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

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

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

third-party complaint or cross-action, (name original defendant) is

attempting to assert a right of contribution against (name third party

defendant).

The defendant, (name original defendant), claims, that if he was

negligent and if his negligence was a proximate cause of [injury]

[damage] to the plaintiff, which he denies, that (name third party

defendant) also was negligent and that the negligence of (name third

party defendant) was also a proximate cause of any [injury] [damage]

that the plaintiff sustained.

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

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

[damage], to the plaintiff (name third party defendant) will be required to

contribute to any damages that are awarded to the (name plaintiff) on

the claim asserted by (name plaintiff) against (name original defendant).

The burden of proof on this issue is on (name original 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 [injury]

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

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 sequence,3 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] then one (or more)

of the defendants may, as in this case, seek to have one (or more) of

those not sued by the 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 [the other] [another].

In this case, the defendant, (name original 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 original 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

[injury] [damage].

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

fact of [injury] [damage].

(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 (name original defendant) has

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

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 [injury]

[damage] concurring with negligence of (name original defendant), then it

would be your duty to answer this issue "Yes," in favor of (name original

defendant).

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

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

(name third party defendant).