Jackson v. McBride, 537

• Decision Date: 24 May 1967
• Docket Number: No. 537,537
• Parties: Henry Lewis JACKSON, by his Next Friend, James Adam Jackson v. Frank McBRIDE.
• Court: North Carolina Supreme Court

Page 468

154 S.E.2d 468

270 N.C. 367

Henry Lewis JACKSON, by his Next Friend, James Adam Jackson v. Frank McBRIDE.

No. 537.

Supreme Court of North Carolina.

May 24, 1967.

Leath, Bynum, Blount & Hinson, Rockingham, for defendant appellant.

Webb, Lee & Davis, Rockingham, for plaintiff appellee.

LAKE, Justice.

The cause of action alleged in the complaint is for the recovery of damages on account of injuries proximately caused by the negligence of the defendant in driving his automobile at an unlawful speed, without keeping a proper lookout, onto the west or left shoulder of the road where the plaintiff was standing, so that it struck him as he stood there. The first issue submitted to the jury was, 'Was the plaintiff, Henry Jackson, injured by the negligence of the defendant, Frank McBride, As alleged in the complaint?' This was proper. (Emphasis added.)

To recover in this action, the plaintiff must carry the burden of proving each essential element of the cause of action which he has alleged, substantially as set forth in the complaint. He cannot recover in this action by proving he sustained injuries by other negligent conduct of the defendant if the difference between his allegations and his proof is so substantial as to constitute a material variance. Moore v. Hales, 266 N.C. 482, 146 S.E.2d 385; Messick v. Turnage, 240 N.C. 625, 83 S.E.2d 654; Deligny v. Tate Furniture Co., 170 N.C. 189, 86 S.E. 980; McCoy v. Carolina Cent. R.R., 142 N.C. 383, 55 S.E. 270. 'If the plaintiff is to succeed at all, he must do so on the case set up in his complaint.' Carswell v. Lackey, 253 N.C. 387, 117 S.E.2d 51. In Talley v. Harriss Granite Quarries Co., 174 N.C. 445, 93 S.E. 995, Walker, J., speaking for the Court, said:

'When the proof materially departs from the allegation, there can be no recovery without an amendment. * * * When the difference between the allegation of the pleading and the proof is substantial, so that the other party is grossly misled by it, and it really amounts to alleging one cause of action and proving another, it is not a variance merely, but a failure of proof.'

Contributory negligence, as its name implies, is negligence on the part of the plaintiff which joins, simultaneously or successively, with the negligence of the defendant alleged in the complaint to produce the injury of which the plaintiff complains. It does not negate negligence of the defendant as alleged in the complaint, but presupposes or concedes such negligence by him. Contributory negligence by the plaintiff 'can exist only as a co-ordinate or counterpart' of negligence by the defendant as alleged in the complaint. Martin v. Highland Park Manufacturing Co., 128 N.C. 264, 38 S.E. 876. See also: Rouse v. Peterson, 261 N.C. 600, 135 S.E.2d 549; Adams v. Board of Education, 248 N.C 506, 103 S.E.2d 854; Garrenton v. Maryland, 243 N.C. 614, 91 S.E.2d 596; Darden v. Leemaster, 238 N.C. 573, 78 S.E.2d 448; Ogle v. Gibson, 214 N.C. 127, 198 S.E. 598; Ballew v. Asheville & E.T.R.R., 186 N.C. 704, 120 S.E. 334; Davis v. Jeffreys, 197 N.C. 712, 150 S.E. 488; Elder v. Plaza R.R., 194 N.C. 617, 140 S.E. 298; 38 Am.Jur., Negligence, § 177.

In Darden v. Leemaster, supra, Parker, J., now C.J., said, 'Where there is no plea of contributory negligence, the submission to the jury of an issue of contributory negligence is not proper,' and also said, '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' of contributory negligence. For the same reason, evidence by the defendant to the effect that the plaintiff was injured not by the negligence of the defendant, As alleged in the complaint, but by the plaintiff's own negligence, As alleged in the answer, would not justify the submission to the jury of an issue of contributory negligence.

Of course, if the plaintiff, whether intoxicated or sober, dressed in dark clothing, voluntarily lay down at 1 a.m. on a moonless night across the center line of a blacktopped, unlighted rural road and remained motionless until struck by a passing automobile, he was negligent and could not recover damages for injuries thereby sustained in the absence of allegations and proof not present in this case. The learned trial judge plainly so instructed the jury.

It does not necessarily follow that allegation and proof of such conduct is allegation and proof of contributory negligence requiring submission of that issue. It does not if it negates the plaintiff's contention that he was injured by the negligence of the defendant, As alleged in the complaint. If so, it relates to the first issue only and does not require or permit the submission of an issue of contributory negligence.

The plaintiff alleged, and all of his evidence is to the effect, that he was standing on the dirt shoulder on the defendant's left side of the road and that the defendant drove off of the pavement, onto the left shoulder and ran into the plaintiff. The defendant has alleged, and all of his evidence tends to show, that he was driving on his right side of the road and, upon being confronted suddenly with the plaintiff lying in the middle of the pavement, cut to his right but was unable to avoid striking the plaintiff. Thus, the defendant has not alleged or offered evidence of negligence by the plaintiff which, in...