#### HARRY E. HOLLINGSWORTH v. RICHARD GRIER.

(Filed 9 November, 1949.)

1. Negligence § 16—

In negligent injury actions, demurrer on the ground of contributory negligence should not be sustained unless such negligence appear patently and unquestionably upon the face of the complaint.

2. Automobiles §§ 8d, 18a—

The complaint alleged that plaintiff was driving his car on his right side of the highway on a cloudy, foggy and rainy night, when he suddenly came upon defendant’s car which was parked without lights in his lane-of traffic, and that immediately upon seeing the parked vehicle, plaintiff swerved his car to the left, but did not have time to avoid the collision. Held: Defendant’s demurrer should have been sustained on the ground that contributory negligence appeared patently and unquestionably upon the face of the complaint.

Appeal by defendant from Bennett, Special Judge, August Term, 1949, of CabaRkus.

Civil action to recover damages arising from a rear-end collision with, defendant’s automobile alleged parked on the highway.

The gist of the complaint follows:

3. That on the 21st day of January, 1949, about 7 p.m. the plaintiff was operating his automobile in a northern direction on Highway 29, about 200 yards north of Lowe’s Trading Center in Kannapolis at a rate-of speed of 30 to 35 miles per hour in his right-hand lane of said highway on a slight downgrade, the weather being cloudy and foggy with a light drizzle of rain falling, when he suddenly came upon the automobile of the defendant parked directly in his lane of traffic without any lights.

4. That immediately upon seeing the automobile of the defendant parked directly in the middle of the right-hand lane of said highway, the *109plaintiff swerved bis ear to tbe left as far as be possibly could witbin tbe limit of time and space but was unable to avoid collision witb tbe automobile of tbe defendant wbicb said collision caused tbe damages hereinafter alleged.

Tbe defendant interposed a demurrer to tbe complaint on tbe ground tbat it does not state facts sufficient to constitute a cause of action, in tbat upon tbe face of tbe complaint, tbe plaintiff’s contributory negligence is manifest and apparent. Tbe defendant also moved for judgment on tbe pleadings.

From judgment overruling tbe demurrer and denying tbe motion for judgment on tbe pleadings, tbe defendant appeals, assigning error.

J. Laurence Jones, C. M. Llewellyn and Sam H. Wilds for plaintiff, appellee.

Hartsell & Hartsell for defendant, appellant. i

Stacy, C. J.

The question for decision is the sufficiency of the complaint to survive the demurrer. The trial court thought it good as against the challenge. We are inclined to a different view.

True it is, a complaint may not be overthrown by demurrer on the ground of the plaintiff’s contributory negligence unless such negligence appear patently and unquestionably upon the face of the complaint. Ramsey v. Nash Furn. Co., 209 N.C. 165, 183 S.E. 536. But here, we think such negligence does so appear on the face of the complaint. The plaintiff says be saw the defendant’s automobile too late to avoid a collision. This was negligence on bis part which contributed to the injury, as be was evidently “outrunning bis headlights” or inattentive to bis own safety. Note the allegation is not that the plaintiff was unable to see the defendant’s car in time to avoid a collision, but that be did not see it in time. He omits to state whether be was keeping a proper lookout or the collision was without fault on bis part. The subject is fully discussed in the following, recent cases: Tyson v. Ford, 228 N.C. 778, 47 S.E. 2d 251; Riggs v. Oil Co., 228 N.C. 774, 47 S.E. 2d 254; Bus Co. v. Coble Dairy Products Co., 229 N.C. 352, 49 S.E. 2d 623; Cox v. Lee, 230 N.C. 155, 52 S.E. 2d 355.

No doubt the plaintiff may desire to reform bis pleading.

Reversed.