Hollingsworth v. Grier

55 S.E.2d 806, 231 N.C. 108, 1949 N.C. LEXIS 465

Opinion

Stacy, C. J.

The question for decision is the sufficiency of the complaint to survive the demurrer. The trial court thought it good as against the challenge. We are inclined to a different view.

True it is, a complaint may not be overthrown by demurrer on the ground of the plaintiff’s contributory negligence unless such negligence appear patently and unquestionably upon the face of the complaint. Ramsey v. Nash Furn. Co., 209 N.C. 165, 183 S.E. 536. But here, we think such negligence does so appear on the face of the complaint. The plaintiff says be saw the defendant’s automobile too late to avoid a collision. This was negligence on bis part which contributed to the injury, as be was evidently “outrunning bis headlights” or inattentive to bis own safety. Note the allegation is not that the plaintiff was unable to see the defendant’s car in time to avoid a collision, but that be did not see it in time. He omits to state whether be was keeping a proper lookout or the collision was without fault on bis part. The subject is fully discussed in the following, recent cases: Tyson v. Ford, 228 N.C. 778, 47 S.E. 2d 251; Riggs v. Oil Co., 228 N.C. 774, 47 S.E. 2d 254; Bus Co. v. Coble Dairy Products Co., 229 N.C. 352, 49 S.E. 2d 623; Cox v. Lee, 230 N.C. 155, 52 S.E. 2d 355.

No doubt the plaintiff may desire to reform bis pleading.

Reversed.