Tbe pleadings disclose tbat tbe plaintiff seeks to recover damages for a personal injury for negligence, against tbe Tannery Company for requiring plaintiff, its employee, to couple up a car witb defective coupling, and against tbe Southern Railway for delivering such a car to tbe Tannery .Company.
Tbe complaint alleges tbat tbe defendant Tannery Company bad tracks on which it kept engines and rolling stock in constant use in connection witb tbe operation of its business in moving cars of its own as well as those delivered by tbe railway company. It is alleged tbat a car which plaintiff was directed to couple bad a defective coupling, so tbat tbe same would not couple by impact, and was otherwise defective and dangerous; tbat such coupling was out of alignment, and tbat it was necessary for plaintiff to push tbe same into alignment before it could couple, and tbat be put bis foot on it to push it into alignment, when bis foot was caught by a splinter and held so tbat be could not extricate himself nor signal to tbe engineer, and tbat bis foot was crushed between tbe couplings of tbe two cars.
Taking tbe allegations of tbe complaint to be true, as we must when a demurrer is interposed, we are of opinion tbat there was error in sus*30taining it. It is probable that the learned judge based his ruling upon the idea that it appears in the complaint that the plaintiff contributed to his injury by putting his foot on or kicking the coupling and, therefore, could not maintain his action for damages.
It appears that plaintiff is not an employee of the Southern Railway, and it is assumed, we presume, that the Tannery Company is not such a common carrier as comes within the purview of the act of the General Assembly of 1913, abolishing contributory negligence as a defense in actions by employees of railroads for personal injuries, and allowing evidence of it only in diminution of damage.
It is true that where the contributory negligence of a plaintiff is patent upon the face of his complaint and it is of that kind which bars his recovery, it may be taken advantage of by demurrer. Burgin v. R. R., 115 N. C., 674.
But we do not think that is the case here to the. extent that the question may be determined upon demurrer ore tenus. "Whether such defense is open to either or both of defendants and whether plaintiff’s negligence was the proximate cause of his injury are matters that can be more properly determined when pleaded in the answer and after the facts are found.
Reversed.