The defendant entered a demurrer ore tenus to the complaint on the ground that it did not state facts sufficient to constitute a cause of action for that it affirmatively alleged contributory negligence on the part of the plaintiff.
On a demurrer the statute (C. S., 535) requires that we construe the complaint liberally with a view to substantial justice between the parties. The demurrer admits the truth of all the material facts alleged, and every intendment is adopted in behalf of the pleader. A complaint cannot be overthrown by a demurrer unless it be wholly insufficient. If in any portion of it, or to any extent it presents facts sufficient to constitute a cause of action, the pleading will stand. It must be fatally defective before it will be rejected as insufficient. S. v. Trust Co., 192 N. C., 246; Lee v. Produce Co., 197 N. C., 714.
At the outset in the case at bar the appellant raises the question whether a demurrer to the complaint on the ground of contributory negligence will lie.
To remove the uncertainty formerly appearing in the decisions of the Court as to whether the burden of proof should be imposed on the plaintiff to negative contributory negligence or on the defendant to allege and prove it, the following statute was enacted (Acts 1887, ch. 33, now O. S., 523) : “In all actions to recover damages by reason of the negligence of the defendant, where contributory negligence is relied upon as a defense, it must be set up in the answer and proved on the trial.”
*169Consequently, it would seem that in order that the defendant may avail himself of the plea of contributory negligence he must set it up in his answer. Failure to so plead it would constitute a waiver. And when so pleaded it must be proven by the defendant by the greater weight of the evidence.
In Kearney v. R. R., 177 N. C., 251, this Court sustained the refusal of the trial judge to grant a prayer for instruction as to the negligence of plaintiff’s employee, on the ground that there was no- averment in the answer to support such a plea, which would be an allegation of contributory negligence, and that the statute specifically required that such plea should have been set up in the answer.
And in Hardy v. Lumber Co., 160 N. C., 113, it was held (p. 123) that if defendant wished to rely upon plaintiff’s negligence, its defense should have been based on proper averment in the answer.
In Hood v. Mitchell, 204 N. C., 130, the judgment of the court below overruling a demurrer on the ground of contributory negligence was affirmed. In that case, Mr. Justice Connor used this language: “It is rarely the ease that the court can hold as a matter of law, upon the allegations of the complaint, or upon evidence offered by the plaintiff, that plaintiff, who has been injured by the negligence of the defendant, cannot recover damages resulting from such injuries, because by his own negligence he contributed to his injuries.”
The only case that has been called to our attention in which a demurrer on the ground of contributory negligence has been sustained is Burgin v. R. R., 115 N. C., 673, where the plaintiff alleged in his complaint that he jumped from a running train and was injured.
A demurrer on the ground of contributory negligence was overruled in Parks v. Tanning Co., 175 N. C., 29, but Brown, J., speaking for the Court, cites the Burgin case, supra, as authority for the statement that where the contributory negligence of a plaintiff is patent upon the face of his complaint, it may be taken advantage of by demurrer.
So that it must be held that only where on the face of the complaint itself the contributory negligence of the plaintiff is patent and unquestionable, so as to bar his recovery, will the court allow advantage to be taken thereof by demurrer instead of by answer, as required by the statute.
Upon consideration of the complaint in the case at bar, we think the lemurrer cannot be sustained on the ground stated by the court below.
Nor can demurrer be sustained for failure to allege facts sufficient to ionstitute a cause of action for negligence on the part of the defendant.
Plaintiff alleges he was injured while attempting to enter defendant’s store on business. Considering the complaint in the most favorable light ’or the pleader, as we are required to do, we think he sufficiently alleges *170á negligent failure of duty on the part of the defendant to an invitee, proximately causing his injury. Hood v. Mitchell, 204 N. C., 130.
It is, of course, well understood that where the plea of contributory negligence has been set up in the answer, notwithstanding the burden of proof to establish it is upon the defendant, motion to nonsuit under C. S., 567, may be allowed when contributory negligence of the plaintiff is established by his own evidence. Elder v. R. R., 194 N. C., 617; Davis v. Jeffreys, 197 N. C., 712.
Eor the reasons stated, the judgment of the court below sustaining the demurrer must be