Darden v. LeemasterAnnotate this Case
78 S.E.2d 448 (1953)
238 N.C. 573
DARDEN v. LEEMASTER.
Supreme Court of North Carolina.
November 11, 1953.
*449 D. Stephen Jones, Clinton, for plaintiff, appellant.
Britt & Warren and Butler & Butler, Clinton, for defendant, appellee.
The plaintiff assigns as error No. Six this part of the court's charge to the jury: "The allegations of contributory negligence made by the defendant against the plaintiff's intestate in all respects are the same as made against the defendant by the plaintiff, except the only additional one I remember is that he was driving down the street without lights. I am not going to repeat the law as to each allegation which I have already given you. The law in regard to contributory negligence is identically the same as it was with respect to the alleged negligence of the defendant." The complaint as one of its allegations of negligence alleges that the defendant "was operating his said automobile while under the influence of intoxicating liquor." The defendant in his answer makes no such allegation as to plaintiff's intestate's driving of his automobile.
Further on in its charge the court said: "the defendant contends in this case he has offered evidence tending to prove, as the *450 defendant contends, that the plaintiff's intestate in this case came to his death through his own contributory negligence in the manner and fashion alleged by the defendant."
The court charged the jury "the allegations of contributory negligence made by the defendant against the plaintiff's intestate in all respects are the same as made against the defendant by the plaintiff, except * * * that he was driving down the street without lights," when the plaintiff had alleged in his complaint that the defendant "was operating his said automobile while under the influence of intoxicating liquor," and when the defendant in his answer had made no such allegation against plaintiff's intestate; and the recital of the contention "the defendant contends in this case he has offered evidence tending to prove * * * that the plaintiff's intestate in this case came to his death through his own contributory negligence in the manner and fashion alleged by the defendant," when the defendant had offered no evidence tending to show that plaintiff's intestate had been drinking any intoxicants, brings this case within the principle announced in State v. Alston, 228 N.C. 555, 46 S.E.2d 567; State v. Isaac, 225 N.C. 310, 34 S.E.2d 410; Curlee v. Scales, 223 N.C. 788, 28 S.E.2d 576; Cummings v. Queen City Coach Co., 220 N.C. 521, 17 S.E.2d 662; State v. Wyont, 218 N.C. 505, 11 S.E.2d 473; Smith v. Stanfield Hosiery Mill, 212 N.C. 661, 194 S.E. 83, 84; to the effect that where the court in its charge submitted to the jury for their consideration facts material to the issue, which were no part of the evidence offered, it constitutes prejudicial error. Its harmful effect is obvious. Those of us who have served on the Superior Court Bench know how intently juries watch and listen to the trial judge.
In Smith v. Stanfield Hosiery Mill, supra, this Court held "that the summation of the complaint, `the dyestuffs were deleterious and poisonous,' when no such allegation appears therein, and the recitation of the contention, `the calves were born with something wrong with them, they were unable to stand or walk and born blind,' when there was no evidence to support such a contention" necessitated a new trial.
A serious question is presented as to whether the defendant has pleaded contributory negligence. Contributory negligence implies or presupposes negligence on the part of the defendant. Carolina Scenic Stages v. Lowther, 233 N.C. 555, 64 S.E.2d 846. The allegation in an answer that the death of the intestate was caused by his own negligence and not by any negligence of the defendant is not a sufficient plea. Cogdell v. Wilmington & W. R. Co., 132 N.C. 852, 44 S.E. 618. "To be sufficient, a plea of contributory negligence must aver a state of facts to which the law attaches negligence as a conclusion." Bruce v. O'Neal Flying Service, 234 N.C. 79, 66 S.E.2d 312, 316. The defendant in his answer alleges that the death of the intestate was caused solely by his own negligence and without any negligence on the part of the defendant, and then alleges the defendant specifically pleads the contributory negligence of the intestate as a bar to plaintiff's recovery. This is the sole reference to contributory negligence in the answer. Where there is no plea of contributory negligence, the submission to the jury of an issue of contributory negligence is not proper. Bevan v. Carter, 210 N.C. 291, 186 S.E. 321.
As this action goes back for a New Trial the court may, and no doubt will, permit an amendment of the answer in this respect, if the defendant desires it. Cogdell v. Wilmington & W. R. Co. supra.
The plaintiff is entitled to a new trial, and it is so ordered.