#### PERCY L. JAMES v. CAROLINA COACH COMPANY.

(Filed 27 February, 1935.)

1. Trial B a — On motion of nonsuit all the evidence is to be considered in the light most favorable to plaintiff.

On a motion as of nonsuit all the evidence, whether offered by plaintiff or elicited from defendant’s witnesses, is to be considered in the light most favorable to plaintiff, and he is entitled to every reasonable intendment thereon and every reasonable inference therefrom. C. S., 567.

2. Automobiles C m — Evidence held sufficient to overrule motion of non-suit in this action for personal injuries sustained in auto collision.

The evidence in this case, considered in the light most favorable to plaintiff, tended to show that plaintiff was driving his coupe well on the right side of a highway within the corporate limits of a city, that another adult and four children were riding in the coupe, that plaintiff’s left arm was hanging outside the car, and that defendant’s bus, driven at an excessive speed, approached from the opposite direction in the middle of the highway, that the bus had just passed another car going in the same direction and was being driven back to the bus driver’s right of the highway, that as the driver turned the bus to the right the back of the bus swung over the middle of the highway and hit plaintiff’s arm and the back of his car, causing the injury in suit: Hela, defendant’s motion as of nonsuit, based upon plaintiff’s failure to slacken his speed, was properly refused, plaintiff having the right to assume that the approaching bus would be driven to its right side of the road so that the bus and car could pass each other in safety. N. C. Code, 2621 (53).

3. Automobiles C g — Violation of statutory speed limit is negligence pier se and not merely evidence of negligence.

The violation of the statutory speed limit is negligence per se, and an instruction that it is only evidence of negligence entitles defendant to a new trial on its exception based upon plaintiff’s contributory negligence in exceeding the speed limit, but such violation must be a proximate cause of the injury in suit in order to constitute a defense to the action.

Appeal by defendant from Shaw, J., and a jury, at April Term, 1934, of DuRhamc.

New trial.

Tbis is an action for actionable negligence brought by plaintiff against the defendant. The defendant denied the material allegations of the complaint and set up the plea of contributory negligence. The issues submitted to the jury and their answers thereto are as follows: “(1) Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? A. 'Yes.’ (2) Was the plaintiff guilty of contributory negligence, as alleged by the defendant? A. 'No.’ (3) What amount of damages, if any,' is the plaintiff entitled to recover ? A. '$12,500.’ ”

*743Tbe court below rendered judgment on tb© verdict. Tbe defendant made numerous exceptions and assignments of error and appealed to tbe Supreme Court. Tbe material ones will be set forth in tbe opinion.

Bryant & J ones for plaintiff.

Smith, Leach & Anderson and Hedrick & Hall for defendant.

Clabkson, J.

At tbe close of plaintiff’s evidence and at tbe close of all tbe evidence tbe defendant made motions in tbe court below for judgment as in case of nonsuit. C. S., 567. Tbe court below overruled these motions, and in this we can see no error.

It is tbe settled rule of practice and tbe accepted position in this jurisdiction that on a motion to nonsuit tbe evidence which makes for tbe plaintiff’s claim, and which tends to support bis cause of action, whether offered by tbe plaintiff or elicited from tbe defendant’s witnesses, will be taken and considered in its most favorable light for tbe plaintiff, and be is entitled to tbe benefit of every reasonable intendment upon tbe evidence, and every reasonable inference to be drawn therefrom.

In Moseley v. R. R., 197 N. C., 628 (635-6), it is said: “A serious and troublesome question is continually arising as to bow far a court will declare certain conduct of a defendant negligence and certain conduct of a plaintiff contributory negligence, and take away tbe question of negligence and contributory negligence from tbe jury. Tbe right of trial by jury should be carefully preserved, and if there is any evidence, more than a scintilla, it is a matter for tbe jury and not tbe court.”

Taking tbe evidence in tbe light most favorable for plaintiff, and with tbe reasonable inference to be drawn therefrom, we think tbe evidence sufficient to have been submitted to tbe jury. Tbe evidence on tbe part of tbe plaintiff was to tbe effect: That plaintiff and bis neighbor, Ralph L. Evans, were taking their “kids” to tbe circus, on 2 August, 1932. Tbe plaintiff was driving a ’29 Model Pontiac Coupe. Evans bad three children and plaintiff one. Plaintiff’s and one of Evans’ were about two years old, and tbe other two were about four and six years old. Plaintiff was driving on Hillsboro Road, in West Durham, in a westerly direction. Traffic was heavy. ■ 15th and 16th streets run into Hillsboro Road at an angle, but they do not cross it. Plaintiff was driving bis car on tbe north side of tbe Hillsboro Road on tbe right-band side, about three feet from tbe curb. He bad gotten beyond the curve and tbe road was straight. The road was thirty feet wide where tbe collision took place. Plaintiff’s ear was between 5% and 6 feet wide. Half of tbe street would be 15 feet. On tbe opposite side of tbe road was Garrad’s Store and a barber shop. Cars were parked next to tbe barber shop. Plaintiff was driving between 20 and *74425 miles an hour. He bad bis left arm out to give traffic signals. Plaintiff testified: “Two of Mr. Evans’ children were standing down to tbe foot of tbe car, in front of bis feet, between bis feet and tbe dasb board. And be bad tbe other one in bis lap. I think be bad tbe baby one in bis lap. I didn’t have a kid in my lap at all. With all those children in tbe car with me and Mr. Evans, I could have driven tbe ear with both bands in a normal way. I don’t think it was more convenient for me to drive along there with my arm banging out tbe window. I can drive a car pretty good with one band. . . . Q. You saw that car driving along in tbe middle of tbe road for a distance of more than 100 feet coming straight toward you, didn’t you? A. Yes, sir. Q. Why didn’t you slow down your automobile? A. "Well, I thought be was going to get back on bis side of tbe road. ... I could have run out through tbe field if I knew tbe bus was going to bit me. Q. If you bad applied your brakes and driven with reference to tbe conditions that existed in front of you, you would have never collided with tbe bus, would you? A. Yes, if I bad set where tbe car was and applied my brakes and stayed right where tbe car was at, be would have bit me. . . . A. Well, I was already a way over on my side of tbe street, not farther than three feet from tbe curb. Tbe bus was coming, and there was no reason why be couldn’t get back on bis side of tbe road. I thought be was going to until it was too late; after be bad done bit me, it was too late then. There was not any reason why be couldn’t pull back on bis side of tbe road. I expected him to.”

R. L. Lake was driving defendant’s bus, beaded toward Durham, in an easterly direction, going at least 40 miles an hour. Tbe bus passed around tbe car of Mrs. H. W. Knight and two parked cars on tbe south side of tbe street, about 50 feet west of where tbe collision occurred, and traveling in tbe center of tbe highway and on plaintiff’s side of tbe road.

Plaintiff testified: “When be got right there, right at tbe curve, be was trying to cut tbe bus back, be was already over on my side of tbe road. That pushed tbe back end of tbe bus around; when be cut it back around, tbe back end of it come around, and tbe very back of it crashed right by my car and bit tbe front of tbe car just a little bit, booked up tbe front fender just a little, and then it got my elbow. I bad my arm banging out the door, like that, and it caught my elbow there between tbe two cars and mashed that all to pieces, and tore my running board and fender all to pieces. It bit tbe back of tbe car more than it did tbe front of it.”

Tbe collision took place about 2 o’clock in tbe day in tbe residential section of tbe city of Durham. Tbe bus was about 30 feet long and 86 inches wide. Tbe testimony of Mrs. H. W. Knight was to tbe effect *745that sbe bad taken ber boys to tbe circus grounds and was returning, going back to Durham in an easterly direction, on Hillsboro Road. “He (speaking of Lake) kept on blowing, and I kind of switched over to one side and gave him a chance to go by, and be swung around me. . . . Bus was going forty miles an hour. . . . When be went around me that tbrowed him over on tbe left-hand side of tbe street. He bad not bad time with tbe rate we were going to get back on bis side of tbe highway and to avoid bitting these cars. I saw tbe collision between Mr. James’ automobile and tbe bus. Mr. James’ car was well over on bis side, on tbe right-band side of tbe street at tbe time of tbe collision. I would say tbe rear end of tbe bus was at least four feet over tbe center of tbe highway leading back, with tbe front end of tbe bus coming back over to bis right, to tbe bus driver’s right.” There was other evidence on tbe part of plaintiff to like effect.

In Shirley v. Ayers, 201 N. C., 51 (53-4), it is said: “Tbe rule to be observed by tbe driver of an automobile, when be approaches another automobile, coming from tbe opposite direction, on a public highway in this State, in order that tbe automobiles may pass each other in safety, is prescribed by statute, section 10, chapter 148, Public Laws 1927, N. C. Code 1927, sec. 2621 (53). The rule is as follows: ‘Drivers of vehicles proceeding in opposite directions shall pass each other to tbe right, each giving to tbe other at least one-half of tbe main traveled portion of tbe roadway as nearly as possible.’

“Tbe driver of each automobile, who is himself observing tbe rule, has tbe right, ordinarily, to assume that tbe driver of tbe other automobile will also observe tbe rule, and thus avoid a collision between tbe two automobiles when they meet each other. Neither is under a duty to tbe other to anticipate a violation of tbe rule by him. When tbe driver of one of tbe automobiles is not observing tbe rule, as tbe automobiles approach each other, tbe other may assume that before tbe automobiles meet tbe driver of tbe approaching automobile will turn to bis right, so that tbe two automobiles may pass each other in safety. ‘One is not under a duty of anticipating negligence on tbe part of others, but in tbe absence of anything which gives or should give notice to- tbe contrary, a person is entitled to assume, and to act on tbe assumption, that others will exercise ordinary care for their own safety.’ 45 C. J., 705.” Cory v. Cory, 205 N. C., 205.

Tbe defendant contends: Tbe court erred in charging tbe jury that exceeding tbe speed limit prescribed by statute is merely evidence from which tbe jury may find that a party is negligent, rather than that exceeding tbe statutory speed limit is negligence per se.

“In Hendrix v. R. R., 198 N. C., 142 (144), is tbe following: ‘It is well settled in this jurisdiction that tbe violation of a town or city ordi*746nance, or State statute, is negligence per se, but tbe violation must be tbe proximate cause of tbe injury. Ordinarily tbis is a question for tbe jury, if there is any evidence, but, if there is no evidence that tbe violation of tbe ordinance or statute is tbe proximate cause of tbe injury, tbis is for tbe court to determine.’ There must be a causal connection between tbe violation of tbe statute and tbe injury inflicted. Burke v. Coach Co., 198 N. C., 8 (13).” Jones v. Bagwell, ante, 378 (382). We think tbe contention of defendant must be sustained.

In Taylor v. Stewart, 172 N. C., 203 (204-5), speaking to tbe subject, is tbe following: “His Honor charged tbe jury that under tbe laws of North Carolina it was a misdemeanor for a person under tbe age of 16 to drive an automobile upon any highway or public street, and that it is a circumstance from which tbe jury may infer negligence, and that it does not necessarily follow that tbe jury shall conclude it was negligence, but that it is a circumstance to go to tbe jury. In tbis bis Honor erred. He should have instructed tbe jury that it is negligence per se for tbe defendant James Stewart to have driven tbe machine in violation of tbe statute law of tbe State. Zogier v. Southern Express Co., 89 S. E., 44; Paul v. R. R., 170 N. C., 231; Ledbetter v. English, 166 N. C., 125. It does not follow, however, that tbe defendant is liable in damages, for tbe plaintiff must go further and satisfy tbe jury by a preponderance of tbe evidence of tbe fact that such negligence was tbe proximate cause of tbe death of tbe child.” Ledbetter v. English, 166 N. C., 125; Graham v. City of Charlotte, 186 N. C., 649 (666); Godfrey v. Coach Co., 201 N. C., 264 (267); Norfleet v. Hall, 204 N. C., 573 (577); Jones v. Bagwell, ante, supra.

We are not unmindful of tbe language used in N. C. Code 1931 (Michie), sec. 2621 (46), subsec. (6).

For tbe reasons given, there must be a

New trial.