#### VIRGINIA FARROW, by Her Next Friend, RANDOLPH FARROW, v. RICHARD WHITE and L. S. POWELL.

(Filed 3 November, 1937.)

Automobiles § 18h: Trial § 29b—

Where there is no allegation or evidence that defendant driver failed to give a warning signal required of him by the statute under the circumstances, it is error for the court to charge the law requiring the giving of such signal, since the court is required to charge the law arising upon the evidence, C. S., 564.

Appeal by defendants from Sinclair, J., at May Term, 1937, of LeNOie. New trial.

William A. Evans and Charles F, Bouse for plaintiff, appellee.

J. A. Jones for defendants, appellants.

ScheNOK, J.

This is an action to recover damages for personal injuries to the plaintiff alleged to have been proximately caused by the negligence of the defendants in striking the plaintiff with an automobile operated on a public highway while the plaintiff was a pedestrian thereon.

The complaint alleges that “the defendants were negligent in the operation of said car which caused the injuries to the plaintiff in the following respects: (a) That while traveling along State Highway No. 11 on a straight strip of said road and at a time when there was 'no other vehicular traffic thereupon, deliberately, or without any regard to the rights and safety of the general public, and particularly the plaintiff, Virginia Farrow, who was walking on said road at said time, operated their said automobile on the left-hand side thereof as they were proceeding and on the wrong side of said road as regards the defendants, and on the left-hand side of the center of said road as the plaintiff was walking, which was the proper and legal side for her to walk upon, and struck and injured the plaintiff as hereinbefore set forth.”

*377Tbe appellant assigns as error tbe following excerpt from tbe charge: “Here is tbe law in tbis State applied to driving upon tbe highway approaching pedestrians going in front of a car. Tbe law requires every person operating an automobile upon tbe public bigbway to use that degree of care that a reasonably careful person would use under like or similar circumstances to prevent injury or death to persons on or traveling over, upon or across such bigbway, and any person so operating an automobile when approaching a pedestrian who is upon tbe traveled part of tbe bigbway and not upon tbe sidewalk shall slow down and give timely signal with bis bell, born or other device for signaling, and tbe failure of such person so operating such motor vehicle so to do is negligence.”

Tbis assignment of error must be sustained since there is no allegation in tbe complaint and no evidence in tbe record that tbe defendants failed to give a timely signal with bell, born or other device for signaling. There is no mention in the complaint or in tbe evidence of any signal, or any failure to give a signal. Tbe judge “shall state in a plain and correct manner tbe evidence given in tbe case and declare and explain tbe law arising thereon.” C. S., 564.

For tbe error assigned tbe defendants are entitled to a new trial, and it is so ordered.

New trial.