Davis v. Rigsby, 314

Citation136 S.E.2d 33,261 N.C. 684
Decision Date29 April 1964
Docket NumberNo. 314,314
PartiesCharles DAVIS, by his Next Friend, Robert Allen, v. William RIGSBY.
CourtNorth Carolina Supreme Court

A. E. Leake, Marshall, for plaintiff.

Williams, Williams & Morris, Asheville, for defendant.

SHARP, Justice:

The basis of defendant's appeal is his contention that plaintiff's evidence establishes his contributory negligence as a matter of law. Plaintiff's argument is that, notwithstanding his own testimony to the contrary, he offered defendant's testimony that he had drunk no intoxicants that night and that this conflict in the evidence was for the jury to resolve. Ordinarily this would be true, but plaintiff overlooks the positive allegation in his complaint that at the time of the accident defendant was operating his automobile while under the influence of an intoxicating beverage thereby proximately causing the upset. A party is bound by his pleadings and, unless withdrawn, amended, or otherwise altered, the allegations contained in all pleadings ordinarily are conclusive as against the pleader. He cannot subsequently take a position contradictory to his pleadings. Universal C. I. T. Credit Corp. v. Saunders, 235 N.C. 369, 70 S.E.2d 176; 71 C.J.S. Pleading § 59. Therefore, so far as plaintiff's right of action is concerned, his allegation that defendant was under the influence of an intoxicant at the time of the accident is conclusive and any evidence to the contrary must be disregarded in passing on the motion for nonsuit.

It is negligence per se for one to operate an automobile while under the influence of an intoxicant within the meaning of G.S. § 20-138. Watters v. Parrish, 252 N.C. 787, 115 S.E.2d 1. If one enters an automobile with knowledge that the driver is under the influence of an intoxicant and voluntarily rides with him, he is guilty of contributory negligence per se. Tew v. Runnels, 249 N.C. 1, 105 S.E.2d 108; Dinkins v. Carlton, 255 N.C. 137, 120 S.E. 2d 543.

Plaintiff's own testimony established his knowledge that defendant was under the influence of an intoxicant at the time he entered his automobile. He cannot avoid the consequences of his lack of prudence by saying that the defendant was not drunk. The two terms are not necessarily synonymous. State v. Painter, 261 N.C. 332, 134 S.E.2d 638. Defendant's motion for a judgment as of nonsuit should have been allowed.

Reversed.

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55 cases
  • United Daughters of the Confederacy v. City of Winston-Salem
    • United States
    • United States State Supreme Court of North Carolina
    • December 16, 2022
    ...has included such assertions in its brief before this Court, no such allegations appear in the amended complaint. See Davis v. Rigsby, 261 N.C. 684, 686 (1964) (noting that "[a] party is bound by his pleadings and, unless withdrawn, amended, or otherwise altered, the allegations contained i......
  • United Daughters of the Confederacy v. City of Winston-Salem
    • United States
    • United States State Supreme Court of North Carolina
    • December 16, 2022
    ...has included such assertions in its brief before this Court, no such allegations appear in the amended complaint. See Davis v. Rigsby, 261 N.C. 684, 686 (1964) (noting "[a] party is bound by his pleadings and, unless withdrawn, amended, or otherwise altered, the allegations contained in all......
  • Shepard v. Bonita Vista Properties, L.P.
    • United States
    • Court of Appeal of North Carolina (US)
    • August 5, 2008
    ...are conclusive as against the pleader. He cannot subsequently take a position contradictory to his pleadings." Davis v. Rigsby, 261 N.C. 684, 686, 136 S.E.2d 33, 34 (1964). Our Supreme Court has also stated: "It is axiomatic with us that a litigant must be heard here on the theory of the tr......
  • Cananwill, Inc. v. EMAR Group, Inc.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • March 5, 1999
    ...otherwise altered, the allegations contained in all pleadings ordinarily are conclusive as against the pleader." Davis v. Rigsby, 261 N.C. 684, 686, 136 S.E.2d 33, 34 (1964). "The effect of a judicial admission is to establish the fact for the purposes of the case and to eliminate it entire......
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