Crouse v. Woodruff , 48 N.C. App. 719 ( 1980 )

VAUGHN, Judge.

The sole question before us is whether the court erred in allowing defendants’ motion to dismiss the complaint. We conclude that the court did not err because an insurmountable bar to recovery, contributory negligence as a matter of law, appears on the face of the complaint.

The general rule is that a complaint should not be dismissed “unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim.’’ Sutton v. Duke, 277 N.C. 94, 103, 176 S.E. 2d 161, 166 (1970) (citing Moore’s Federal Practice § 12.08). For purposes of deciding the motion in this case, the allegations in plaintiff’s complaint tending to show the negligence of the defendants are deemed to be admitted. Defendants’ answer raised the defense of contributory negligence. Ordinarily, the defendants would have to prove plaintiff’s contributory negligence. Rockett v. City of Asheville, 6 N.C. App. 529, 170 S.E. 2d 619 (1969b Nevertheless, plaintiff’s own pleadings in this case establish the defense of contributory negligence as the sole reasonable conclusion to be drawn under any theory that could have been presented at trial. See Warren v. Lewis, 273 N.C. 457, 160 S.E. 2d 305 (1968); Douglas v. Mallison, 265 N.C. 362, 144 S.E. 2d 138 (1965).

In this case, plaintiff’s conduct, as alleged in his own words, violates the standard of reasonable care and protection required of one for his own safety under similar circumstances. Restatement (Second) of Torts § 463, Comment b, and § 464 (1965). A well accepted definition of contributory negligence in North Carolina appears in Moore v. Iron Works, 183 N.C. 438, 439, 111 S.E. 776, 777 (1922): “Contributory negligence, such as will defeat a recovery in a case like the one at bar, is the negligent act of the plaintiff, which, concurring and cooperating with the negligent act of the defendant, thereby becomes the real, efficient, and proximate cause of the injury, or the cause without which the injury would not have occurred.” Assuming defendant Johnson was negligent in turning off the tractor before the plaintiff was able to get off, it is nonetheless clear that plaintiffs own negligence was a proximate cause of his injury.

First, plaintiff was familiar with the tractor and admits in his complaint that he was aware of the attendant risks of harm involved in the operation of the tractor by an inexperienced driver. In Bogen v. Bogen, 220 N.C. 648, 18 S.E. 2d 162 (1942), the Court held that plaintiff wife was contributorily negligent as a matter of law for riding in an automobile driven by defendant husband when she knew that he “habitually” drove recklessly at high speed and ignored any “protest or remonstrance” made. Second, the resulting injury to plaintiff was not only reasonably foreseeable by him, but also one he could have easily avoided. Burgess v. Mattox, 260 N.C. 305, 132 S.E. 2d 577 (1963). Other cases finding contributory negligence as a matter of law are: Clark v. Roberts, 263 N.C. 336, 139 S.E. 2d 593 (1965) (inserting hand into a field chopper); Kiser v. Snyder, 21 N.C. App. 708, 205 S.E. 2d 619 (1974) (placing fingers in front of the guardrail on metal shearing machine); Peeler v. Cruse, 14 N.C. App. 79, 187 S.E. 2d 396 (1972) (standing on the blade of motor grader). For analogous cases discussing the contributory negligence of passengers in automobiles driven by inexperienced drivers, see Annot. 43 A.L.R. 2d 1155, 1163-65 (1955).

It is deemed to be true that defendant Johnson “insisted” that the plaintiff, an employee, accompany her on this dangerous driving lesson. Yet plaintiff again admits in his complaint that he knew “her operation of said tractor might not be prudent.” No reasonable farm laborer familiar with a tractor and its capacity for serious injury would have ridden on the back of the tractor standing near a powerful accessory blade while an inexperienced driver operated it. Because of her known inexperience, defendant Johnson’s negligence in turning off the tractor before plaintiff dismounted was foreseeable and was included in the risks to which plaintiff voluntarily exposed himself. It was not one of the general risks of his employment as a laborer to which he was required to expose himself. Plaintiff’s position can draw no strength from Swaney v. Steel Co., 259 N.C. 531, 131 S.E. 2d 601 (1963). In that case the risk was unknown to the plaintiff. Here plaintiff alleges that he knew of the danger. His own negligence was a proximate cause of his injury and bars his recovery. The motion to dismiss was properly allowed.

Affirmed.

Judges Martin (Robert M.) and Webb concur.