Davis Ex Rel. Allen v. Rigsby , 261 N.C. 684 ( 1964 )

136 S.E.2d 33 (1964) 261 N.C. 684

Charles DAVIS, by his Next Friend, Robert Allen,
v.
William RIGSBY.

No. 314.

Supreme Court of North Carolina.

April 29, 1964.

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 A party is bound by his pleadings and, unless withdrawn, amended, or otherwise altered, the allegations contained in all pleadings ordinarily are conclusive as against the pleader.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.