Maynor v. Pressley

124 S.E.2d 162 (1962)

256 N.C. 483

Donald Edward MAYNOR, by His Next Friend, Joseph C. Reynolds, v. Richard Clayton PRESSLEY and Julius McCree Pressley.

No. 91.

Supreme Court of North Carolina.

February 28, 1962.

*163 S. Thomas Walton, Asheville, for plaintiff, appellant.

Williams, Williams & Morris, by J. N. Golding, Asheville, for defendants, appellees.

HIGGINS, Justice.

A plea of contributory negligence must allege negligent acts or omissions on the part of the plaintiff which contributed to his injury as one of its proximate causes. Skinner v. Jernigan, 250 N.C. 657, 110 S.E.2d 301; Adams v. State Board of Education, 248 N.C. 506, 103 S.E.2d 854; Hunt v. Wooten, 238 N.C. 42, 76 S.E.2d 326; Holderfield v. Rummage Bros. Trucking Co., 232 N.C. 623, 61 S.E.2d 904; Tyson v. Ford, 228 N.C. 778, 47 S.E.2d 251.

*164 An allegation that a party was negligent is not enough. The ultimate facts alleged must be such as to permit a reasonable inference of some negligent act or omission on the part of the plaintiff which contributed to his injury. The defendants do not allege the driver was under the influence of intoxicants or that he was otherwise incapacitated to operate the vehicle. They allege that during some undisclosed period of time the driver and the plaintiff had consumed five to seven beers. Neither the size of the drinks nor the effect of taking them, was alleged. Some time afterwards they paid a visit to the girl friend's home. How long, or how short, the stay is not alleged. On the return trip the accident occurred.

It is alleged that the plaintiff knew about the driver's condition, whatever it was, and with that knowledge continued to ride with him. If the driver was intoxicated, if he was incapable of operating the automobile with safety, and the plaintiff, after notice, voluntarily continued to ride as a passenger, it would seem to be a rather simple matter to say so in the pleading. For failure to allege the facts essential to the plea, Judge Phillips ordered the plea stricken. For the same failure after amendment, Judge McLean entered a similar order. For the third time the plea was filed with the defects unremedied. However, the court entered an order denying the motion to strike.

The plea fails to allege facts which are sufficient in law to show the defendant, Richard C. Pressley, lacked capacity to drive the vehicle and the plaintiff, knowing of the incapacity, voluntarily exposed himself to the danger of riding as a passenger when he should have foreseen that injury might result. Dinkins v. Carlton, 255 N.C. 137, 120 S.E.2d 543; Bell v. Maxwell, 246 N.C. 257, 98 S.E.2d 33. If the facts alleged are insufficient as a defense, the plea should be stricken as irrelevant. Davis Co. v. Burnsville Hosiery Mills, 242 N.C. 718, 89 S.E.2d 410. The motions to strike should have been allowed. The cause is remanded to the Superior Court of Buncombe County for the entry of an order striking the plea in bar.

Reversed.

WINBORNE, C. J., not sitting.