#### SALLIE W. PRIDGEN v. HOLEMAN PRODUCE COMPANY.

(Filed 15 October, 1930.)

1. Highways B f — Evidence held sufficient to take case to jury on question of proximate cause and intervening negligence.

Evidence tending to show that the plaintiff was being driven by her husband in his automobile and that the driver of the defendant’s truck, in attempting to pass the car in which she was riding, suddenly and without warning drove his truck back to the right of the road in front of the car driven by the plaintiff’s 'husband before the truck had completely passed the car, and that her husband, to avoid a collision with the truck drove his car off the road and hit a filling station, causing the injury in suit, is held, sufficient to take the case to the jury upon the question of whether the negligence of defendant’s driver was the proximate cause of the injury or whether the husband of the plaintiff was guilty of intervening negligence relieving the defendant of liability.

*5612. Evidence K a — Husband may testify from his own observation as to the fact and extent of his wife’s suffering from negligent injury.

In the wife’s action to recover damages for an alleged negligent personal injury it is competent for her husband to testify from his own observation both as to the fact and the extent of her suffering.

3. Negligence B c — Acts of third person placed in imminent peril by defendant’s negligence held not to bo intervening negligence barring recovery.

Where a driver negligently turns hack to the right before having fully passed a car on the highway, subjecting the driver of the car in which the plaintiff is riding to imminent peril, the plaintiff’s driver will not be held to the same deliberation or circumspection as he would in ordinary circumstances, and in this case his driving off the road and hitting a filling station is held not to constitute intervening negligence as a matter of law, which would insulate the negligence of the defendant, and relieve him from liability.

Appeal by defendant from Devin, J., at May Term, 1930, of WarreN.

No error.

Action to recover damages for personal injuries caused by tbe negligence of tbe defendant.

Plaintiff was riding in an automobile driven by ber busband on tbe bigbway from Ealeigb to Wake Forest. Defendant’s truck, loaded witb produce and driven by one of its employees, overtook tbe automobile and attempted to pass on its left. Before tbe truck bad passed tbe automobile, its driver, without warning, suddenly turned to bis right, across tbe bigbway and in front of tbe moving automobile. Tbe driver of tbe automobile, in order to avoid a collision, turned to bis right, drove off tbe bigbway and crashed into a filling station. As tbe result, plaintiff sustained painful injuries to ber person, for which she demands damages of tbe defendant.

Plaintiff contended that ber injuries were caused by tbe negligence of tbe driver of defendant’s truck; defendant denied that its driver was negligent as alleged in tbe complaint, and contended that plaintiff’s injuries were caused by tbe negligence'of the driver of tbe automobile; that if its driver was negligent, as alleged in tbe complaint, tbe proximate cause of plaintiff’s injuries were not such negligence, but tbe negligence of the driver of tbe automobile.

Tbe jury, in response to tbe issues submitted by tbe court, found that plaintiff was injured by tbe negligence of tbe defendant and assessed ber damages at $1,500.

From judgment that plaintiff recover of tbe defendant tbe sum of $1,500, and tbe costs of tbe action, defendant appealed to the Supreme Court.

*562 Julius Banzei for plaintiff

Smith & J oyner for defendant.

CoNNOs, J.

We find no error in the trial of this action. It was competent for plaintiff’s husband to testify, from his observation, both as to fact and as to the extent of her suffering. The jury was properly and correctly instructed as to the principles of law discussed and applied in Ballinger v. Thomas, 195 N. C., 517, 142 S. E., 761, relative to the negligence of a third party which insulates the negligence of the defendant, and is, therefore, the proximate cause of plaintiff’s injuries. There was ample evidence to sustain the finding of the jury that the proximate cause of plaintiff’s injuries was the negligence of the driver of the truck, for which defendant was liable on the principle of respondeat superior.

There was evidence tending to show that the driver of the automobile, in which plaintiff was riding, was confronted by a sudden peril caused by the negligence of the driver of defendant’s truck. It is doubtful whether there was evidence tending to show that he acted otherwise than as a prudent man under the circumstances, which constituted an emergency. In Hinton v. R. R., 172 N. C., 587, 90 S. E., 756, it is said: “It is well understood that a person in the presence of an emergency is not usually held to the same deliberation or circumspect care as in ordinary conditions.” If the conduct of the driver of the automobile was not such negligence as would bar his recovery, it is manifest that such conduct was not negligence insulating the negligence of the defendant, and therefore relieving defendant of liability to the plaintiff in this action, because its negligence was not the proximate cause of her injuries. The judgment is affirmed. We find

No error.