Opinion
(Filed 17 September, 1930.)
1. Pleadings D a — Where pleadings liberally construed allege a cause of action a demurrer thereto will be overruled.
Upon a demurrer the pleadings are liberally construed in the light most favorable to the pleader, and where there are conflicting allegations, and one of them is sufficient to allege a cause of action, a demurrer thereto will not be sustained. C. S., 535.
2. Highways B h — In this case held: demurrer on ground that complaint disclosed contributory negligence barring recovery was properly overruled.
Where, in an action to recover damages for a collision it is alleged that the collision resulted from the plaintiff's son, while driving in a careful manner, running into the defendant's truck which was negligently parked on the hard-surface portion of the highway, and that the injury was a result of the "wilful, wanton, careless and negligent conduct of the defendant, " the allegations are sufficient to overrule defendant's demurrer thereto entered on the ground that the contributory negligence of the plaintiff's son was patent upon the face of the complaint. Lee v. Produce Co., 197 N.C. 714, cited and applied. Burgin v. R. R., 115 N.C. 673, cited and distinguished.
APPEAL by defendant from Small, J., at February Term, 1930, of BERTIE.
J.H. Matthews for plaintiff.
S. L. Arrington for defendant.
Civil action to recover damages for an alleged negligent injury to plaintiff's automobile, caused by a collision between said automobile, while being driven in a careful manner by plaintiff's son, and the defendant's truck which was negligently parked on the hard-surfaced portion of the highway, heavily loaded with lumber. It is alleged that the injury to plaintiff's automobile, in the amount of $1,000, was caused by "the wilful, wanton, careless and negligent conduct of the defendant."
A demurrer was interposed on the alleged ground that the contributory negligence of plaintiff's son was patent on the face of the complaint. Overruled; exception; appeal.
The judgment will be affirmed on authority of what was said in Lee v. Produce Co., 197 N.C. 714, 150 S.E. 363.
The case of Burgin v. R. R., 115 N.C. 673, 20 S.E. 473, strongly relied upon by the defendant, is easily distinguishable, the character of the allegations in the two complaints being quite different.
Affirmed.