concurring in part and dissenting in part: In tbe refusal of tbe trial court to submit an issue as to alleged contributory negligence of plaintiff, there is, in my opinion, error, for wbicb a new trial should be awarded.
I agree that tbe statute G.S. 1-139 provides that “in all actions to recover damages by reason of tbe negligence of tbe defendant, where contributory negligence is relied upon as a defense, it must be set up in tbe answer and proved on tbe trial.” I also agree that it is elementary in tbe law of pleading and practice that here must be both allegation and proof as tbe statute provides. And I agree, as stated in tbe majority opinion, that defendants have pleaded contributory negligence. But I do not agree that there was no evidence at tbe trial tending to sustain these allegations.
I bold that defendants have offered evidence of sufficient probative value to support tbe plea, and that tbe allegation is sufficient to embrace tbe kissing incident and to render evidence thereof pertinent on tbe issue of contributory negligence. It is provided by statute G.S. 1-135 that tbe answer of defendant must contain “a statement of any new matter constituting a defense ... in ordinary and concise language, without repetition.” And McIntosh in bis North Carolina Practice and Procedure, p. 487, speaking of contributory negligence, says that defendant “must plead it specially, stating tbe circumstances wbicb constitute tbe contributory negligence.” In other words, it is tbe ultimate facts, and not evi-dentiary matters that have a place in tbe answer.
Tbe averments on wbicb defendants base their plea of contributory negligence are these: “6. That ... as the automobile left tbe said gravel covered area and entered tbe said paved roadway, tbe plaintiff turned her body sidewise and to tbe left so that she was facing directly toward tbe said John E. Wooten, Jr., and so that her weight rested upon and along tbe front portion of tbe seat in wbicb they were riding and engaged in animated conversation with said minor defendant in a manner wbicb was calculated to divert and wbicb did . . . divert bis mind from tbe physical and mental processes of driving . . . and while tbe said defendant was so driving and tbe plaintiff was so sitting and directing her conversation to him, be suddenly discovered ... a fire plug directly in bis path and a few feet only away . . . and although tbe automobile was moving at a comparatively slow rate of speed ... it was impossible to stop tbe said automobile before it struck tbe said fire plug . . .”
Tbe ultimate fact averred is that plaintiff engaged minor defendant “in animated conversation ... in a manner wbicb was calculated to divert and wbicb did . . . divert bis mind from tbe physical and mental processes of driving . . .”
Now what is tbe evidence? Plaintiff testified: “I probably did state after this happened that I didn’t think be (John, Jr.) was any more to *52blame than I was. On this particular night, just before the collision took place, I was sitting facing Mm, and be and I were taking very much interest in each other.” (E. p. 46.) Plaintiff also testified: “I was talking to him and sitting there facing him at the time of the wreck.” (E. p. 48.) And again, plaintiff testified: “I was conversing with him.” (E. p. 117.) Certainly these statements of plaintiff are some evidence that she and John, Jr., were in conversation.
Then was it an animated conversation? Defendant John, Jr., when upon the stand as a witness, testified: “Eight after we got around this corner, she leaned over towards me and I leaned over slightly toward her, and we kissed. We were on the pavement at that time.” (E. p. 145.)
Again, on cross-examination, defendant John, Jr., was asked: “Why do you say you ran off the road?” A. “Well, er, I was occupied in other ways at the time. I wouldn’t say I was kissing Dot at the time; she was kissing me. No, I wouldn’t want to say that either; by mutual agreement, you might say, and it just happened . . .” (E. p. 152.)
And on re-direct examination defendant John, Jr., concluded: “I thought I was headed straight down the road. And Miss Dorothy leaned over to me, and I leaned towards her, too, and we kissed together; each one kissed the other. And I looked back again and the hydrant was right in front of me; that is about it. I hollered out Hook out,’ and tried to apply my brakes but I didn’t have time.” (E. pp. 158-9.)
Surely this matter of kissing is evidence from which the jury could infer that it was a mutual affair and an incident to the conversation.
And clearly the evidence is sufficient to support a finding that the conversation was animated. Eepeating, I say the kissing is evidence of the ultimate fact alleged, but is not the ultimate fact to be alleged. Hence, failure to allege it is not fatal to defendant’s plea.
Moreover, in the course of his testimony, defendant John, Jr., testified: “Nothing was said in that answer about my kissing the girl or her kissing me. Nobody knew about it until yesterday. Nobody that I had told.”
The factual background and setting of the occurrence here under consideration as shown by the evidence offered on trial sheds light on the situation. It is as follows:
Plaintiff was 18 years of age, and a senior in high school. Defendant, John, Jr., was 17 years of age and a junior in high school. He and she had been going together two or three months. But being a junior he could not take part in entertainments at commencement time unless invited by a senior. So plaintiff invited him to be her escort. And on the night of 5 June, 1951, he took her in his father’s car to various places where entertainment was had. Then he heard that there was to be an open-air dance out at the airport. So he and she drove out there, but did not stop. They drove on further to a paved place behind or beside the *53gym, or recreation building. No one else was there. And plaintiff testified: “John and I parked right there at the recreation building and sat there and talked to be quiet.” Rut they did alight, and in the language of plaintiff: “We played the radio there and danced there. Nobody there but John and me. I was not in a hurry to get home. Not until 12:30 I wasn’t.” And defendant John, Jr., testified: “When I finally did start, I came out back of the gym and headed down the drive which runs beside the gym, towards the road on which I had the wreck . . .”
For reasons stated, I vote for a new trial.