#### FRED L. EVERSOLE v. R. E. SPRINKLE.

(Filed 25 January, 1933.)

Negligence D c—

Where the evidence on the question of contributory negligence is conflicting a motion as of nonsuit is improvidently granted.

Appeal by plaintiff from Moore, J., at August Term, 1932, of YaNcey.

New trial.

Charles Ilutchins for plaintiff.

Johnson, Smothers & Rollins for defendant.

Pee Cubiam.

The plaintiff brought suit against the defendant to recover damages for personal injury caused by the alleged negligence of the defendant. The material allegations are substantially these: The plaintiff while driving a Ford truck on Little Rock Creek Highway near Bakersville met several larger trucks operated by the defendant, which were loaded with wood. These trucks occupied a part of the *123highway to which the plaintiff was entitled under the law, leaving a narrow space for the passage of the Ford truck.

The plaintiff contended that if he had stopped his truck a collision would have occurred and that when he turned to the right, the embankment gave away and his car rolled down the side of the mountain. ITis injury was not denied.

At the close of the plaintiff’s evidence the court dismissed the action as in case of nonsuit. The judgment was based apparently on the contributory negligence of the plaintiff; it was conceded that there was evidence tending to establish the negligence of the defendant.

We deem it unnecessary to analyze the forty-three pages of testimony. A part of it unquestionably tends to show the plaintiff’s contributory negligence, and a part to prove the exercise of due care. Under these circumstances the issue of contributory negligence was a matter for the jury to determine. For this reason the plaintiff is entitled to a

New trial.