#### W. A. COHOON v. JEFFERSON DAVIS et al.

(Filed 20 February, 1918.)

1. Evidence — Admissions—Pleadings—Demurrer—Trials.

In an action to recover damages alleged to have been caused by tbe negligence of tbe defendant’s driver of bis team, and there is sufficient evidence of tbe negligence, a demurrer on tbe ground that there was no evidence that tbe driver was employed by tbe defendant at tbe time will not be sustained where tbe plaintiff has alleged it and it is admitted in tbe answer and tbe trial has proceeded upon that theory throughout without defendant’s objection.

2. Instructions — Evidence—Contributory Negligence — Rule of Prudent Man.

Where tbe evidence in an action to recover damages for tbe alleged negligence of tbe defendant is sufficient to establish contributory negligence on tbe plaintiff’s part, if so found by tbe jury, it is reversible error for tbe trial judge to add to an instruction containing tbe facts showing such negligence, that they should find for tbe plaintiff if they found that be acted as a reasonably prudent man under the circumstances. Hinson v. Telegraph Oo., 132 N. C., 466, cited and applied.

Appeal by defendant from Kerr, J., at the Special October Term, 1917, OÍ TYRRELL.

This is an action to recover damages for personal injury caused, as the plaintiff alleges, by the negligence of the defendants. The defendants deny negligence, and allege that the plaintiff was injured by his own contributory negligence.

The plaintiff, who was driving a cart at the time, was injured on the night of 18 September, 1916, on one of the streets of Columbia, by a *146collision with a dray belonging to the defendants and driven by one of their employees.

The plaintiff offered evidence tending to prove that the street where the collision occurred was thirty feet wide; that the night was dark; that he was driving a gentle horse in a walk; that he was on the extreme right of the street; that the employee of the defendants, who was going in an opposite direction, approached him driving at a high rate of speed; that the employee was in the middle of the street; that the plaintiff gave notice of his own presence, but that without any notice from the employee and when making no effort to stop, he drove against the cart of the plaintiff, threw him out and seriously injured him.

Defendants introduced evidence tending to prove that their employee was driving .at a speed of from .four to six miles an hour; that he was on the extreme right of the street as far from the plaintiff as he could go; that the plaintiff was in the shade of a large cypress overhanging the street; that there was a light behind the employee of the defendants and in front of the plaintiff; that the employee of the defendants could not see the plaintiff on account of his position under the tree and the location of the light; that the plaintiff was about the middle of the street; that the plaintiff saw and heard the employee of the defendants approaching and knew that there was danger of a collision and. made no outcry and gave no notice of his presence.

There was a motion by the defendants for judgment of nonsuit, which was overruled, and the defendants excepted.

His Honor instructed the jury on the second issue, incorporating the facts relied on by the defendants to show contributory negligence, and then added to the instruction: “And you find that a reasonably prudent man would not have done as the plaintiff did on that occasion, you would answer that issue 'Yes/ but if you find from the evidence that the plaintiff was driving as a reasonably prudent man would have on that occasion; that he did what a reasonably prudent man would have done to prevent the injury, then you should answer that issue No,’ because he would not be guilty of contributory negligence.” The defendant excepted. The jury returned the following verdict:

1. Was the plaintiff injured by the negligence of the defendants, as alleged in the complaint ? Answer: “Yes.”

2. Did plaintiff, by his own negligence, contribute to his injury ? Answer: “No.”

3. What damage is plaintiff entitled to recover ? Answer: “$1,000.”

Judgment was entered upon the verdict in favor of the plaintiff and the defendants appealed.

T. H. Woodley and Aydlett & Simpson for plaintiff.

Majette & Whitley and Meelcins <& McMullan for defendant.

*147AuleN, J.

Tbe position of tbe defendants in support of tbeir motion for judgment of nonsuit is tbat there is no evidence tbat Combs, wbo was driving tbe dray, was engaged in tbe business of tbe defendants át tbe time of tbe collision. It is true no witness testifies directly to tbe fact, but tbe circumstances tend to prove it, and tbe pleadings and tbe whole course of tbe trial show tbat this fact was not in controversy.

Tbe complaint alleges “tbat on tbe 18th day of September, 1916, and prior thereto, John Combs was in tbe employ of tbe defendants, bis duties being, among other things, to drive the dray or wagon for tbe defendants in delivering goods and other works connected with tbe said business of said defendants,” and this allegation is admitted in tbe answer.

Tbe plaintiff testified tbat at tbe time of tbe collision Combs was driving a dray belonging to tbe defendants and tbat be was going from tbe store of tbe defendants to tbeir stock bouse, and bis Honor in bis charge to tbe jury spoke of Combs more than once as tbe agent of tbe defendants, and of bis acts as tbeir acts, without objection at tbe time, and no exception is now taken to this part of tbe charge.

We do not think this contention of tbe defendants can be sustained, and being of opinion there is evidence of negligence, tbe ruling on tbe motion for judgment of nonsuit is upheld.

Tbe exception of tbe defendants to tbe charge on tbe issue of contributory negligence is well taken.

If tbe night was dark and tbe plaintiff in tbe shade of a tree; if tbe lights were so located tbat tbe plaintiff could see tbe approach of tbe employee of tbe defendants and tbat be was moving at a high rate of speed; if tbe plaintiff was in tbe.middle of tbe street and in danger of a collision, and be did not attempt to turn to tbe right and made no outcry, and gave no notice of bis presence, be was guilty of contributory negligence, and as there was evidence tending to prove these facts, tbe defendants were entitled to have them submitted to tbe jury without tbe qualification of tbe rule of tbe prudent man, which, under tbe evidence in this ease, permitted tbe jury to answer tbe second issue against tbe defendants although they might find every fact bearing on tbe conduct of tbe plaintiff as tbe defendants contended, if, upon tbe whole evidence, tbe jury thought tbe plaintiff was acting as a man of ordinary prudence.

Tbe rule of tbe prudent man is tbe standard for determining negligence and contributory negligence, and it is frequently sufficient to submit tbe question to tbe jury with this as tbe sole guide, but it is error to superadd this qualification to a statement of facts which themselves, singly or in combination, establish negligence or contributory negligence.

*148A precedent in point is Hinson v. Telegraph Co., 182 N. C., 466, in which a new trial was ordered on account of a similar erroneous charge.

New trial.