#### ALICE McGEE SMITH v. CAROLINA COACH COMPANY.

(Filed 19 October, 1938.)

1. Trial § 22b—

Upon motion to nonsuit, the evidence must be viewed in the light most favorable to plaintiff, giving her the benefit of every reasonable intendment and inference.

2. Automobiles §§ 13, 18g — Evidence that driver failed to signal his intention to stop held sufficient for jury on issue of negligence.

Plaintiff’s evidence tended to show that she was driving her automobile on the highway following a bus going in the same direction, that the bus driver suddenly stopped the bus without giving the signal required by C. S., 2621 (59). Sold: The evidence was sufficient to be submitted to the jury on the issue of negligence notwithstanding evidence tending to show a sudden emergency making such stop imperative, and that the bus was equipped with signal lights that lighted when the brake was applied, such evidence being for the jury and not the court on defendant’s motion to nonsuit.

3. Automobiles §§ 11, 18g — Evidence held not to show that plaintiff’s failure to see if she could pass bus in safety was proximate cause of injury.

Evidence that plaintiff started to pass defendant’s bus going in the same direction, saw a car approaching from the opposite direction, and pulled her car back in line behind the bus, and thereafter struck the rear of the bus when it stopped without signal, is held not to show contributory negligence barring recovery as a matter of law for failure of plaintiff to ascertain she could not pass the bus in safety before attempting to do so, since the evidence does not show that such failure was a proximate cause of the injury.

4. Automobiles §§ 9b, 18g — Whether plaintiff failed to keep proper distance behind bus held for jury under the evidence.

Plaintiff’s car hit the rear of defendant’s bus when the bus suddenly stopped without warning on the highway. Defendant moved to nonsuit upon the ground that plaintiff’s evidence showed contributory negligence as a matter of law for failure of plaintiff to keep a reasonable and prudent distance behind the bus, as required by statute, Michie’s Code, 2621 (57). Plaintiff testified that she was driving her car at about 40 miles per hour behind the bus and that she could see the pavement between her car and the bus for a distance as far as from the witness stand to the jury box. Held: Whether, under the circumstances, this was a shorter distance than was reasonable and prudent, was for the jury.

5. Automobiles §§ 12a, 18g — Whether speed of 40 miles per hour was negligent under the circumstances held for jury.

Defendant moved to nonsuit for that plaintiff’s evidence that she was traveling about 40 miles per hour established contributory negligence as a matter of law. Held: Such speed is neither negligence per se nor prima facie evidence of negligence, and whether it was negligent under the circumstances was a question for the jury.

Stacy, C. J., and Barnhill and Winborne, JJ., dissent.

*315Appeal by defendant from Harris, J., at April Term, 1938, of JohNstoN.

No error.

Royall, Gosney & Smith and Abell & Shepard for plaintiff, appellee.

J. M. Broughton for defendant, appellant.

ScheNCK, J.

This is an action to recover damages alleged to bave been proximately caused by the negligence of the defendant in bringing about a collision between a passenger automobile operated by the plaintiff and a bus operated by the agent and servant of the defendant on Highway No. 10 between Garner and Ealeigh. The usual issues of negligence, contributory negligence and damage were submitted and all answered in favor of the plaintiff. From judgment predicated on the verdict the defendant appealed, assigning but one error, namely, that the court erred in disallowing its motion for judgment as of nonsuit made at the close of the plaintiff’s evidence and renewed at the close of all the evidence. O. S., 567.

The bus of the defendant and the automobile of the plaintiff were both proceeding in a northwardly direction toward Ealeigh and the plaintiff’s automobile collided with the rear end of the defendant’s bus, causing said automobile to leave the highway with resulting personal injury to the plaintiff and damage to her automobile. The evidence viewed in the light most favorable to the plaintiff, giving her the benefit of every reasonable intendment and inference, which we must do upon a demurrer to the evidence, tends to show that the plaintiff was driving behind the defendant’s bus, that she attempted to pass the bus, but upon pulling her automobile to the left preparatory to passing she saw a car approaching from the opposite direction, and pulled her automobile back behind the bus, and while driving at a rate of speed of about 40 miles per hour, in a reasonable distance of the bus, the bus was suddenly stopped without any signal being given by the driver of the bus of his intention to stop, and as a result of the sudden stopping of the bus the plaintiff was unable to stop her automobile in time to avoid a rear end collision therewith.

C. S., 2621 (59), provides that “the driver of any vehicle . . . before . . . stopping . . . shall first see that such movement can be made in safety . . . and whenever the operation of any such vehicle may be affected by such movement shall give a signal as required in this section plainly visible to the driver of such other vehicle of the intention to make such movement. . . . Whenever the signal is given the driver shall indicate his intention to . . . stop . . . by extending the hand and arm from and beyond the left side of the vehicle . . . hand and arm pointing down. . . .”

*316There is evidence tending to show that no signal was given before the bus was brought to a sudden stop. "While there is evidence introduced by the defendant tending to show a sudden emergency making such stop imperative, and that the bus was equipped with signal lights that lighted when the brake was applied, this evidence was for the consideration of the jury, and not of the court upon a motion for judgment as of nonsuit.

We hold that there was sufficient evidence to be submitted to the jury upon the first issue.

The defendant contends, however, that even if it be conceded that there was sufficient evidence to be submitted to the jury on the first issue, the plaintiff’s own evidence establishes, as a matter of law, contributory negligence.

The defendant’s first contention is that it is shown by the plaintiff’s own testimony that she was negligent in not ascertaining that a car was approaching from the opposite direction before attempting to pass the bus. This contention is untenable for the reason that it cannot be held as a matter of law that her failure to first ascertain the approach of another car from the opposite direction was the proximate cause of the plaintiff’s injury and damage.

The defendant’s second contention is that the plaintiff was contribu-torily negligent, as a matter of law, for the reason that her own testimony showed she was driving too close behind the bus. This contention is likewise untenable. N. C. Code of 1935 (Michie), 2621 (57), provides: “The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent with regard for the safety of others and due regard to the speed of such vehicles and the traffic upon and condition of the highway.” The evidence most favorable to the plaintiff upon this aspect of the case is the testimony of the plaintiff that she could see the pavement between her automobile and the bus for a distance as far as from the witness stand to the jury box, and whether this was a distance shorter than was reasonable and prudent, having regard for the traffic and condition of the highway, was a question for the jury.

The defendant’s third contention is that the plaintiff’s testimony shows she was operating her automobile at a negligent rate of speed. The plaintiff’s testimony is to the effect that she was driving about 40 miles per hour. Driving 40 miles per hour is neither negligence per se nor prima facie evidence of negligence. Whether such driving was negligent under the circumstances under which the plaintiff was operating her automobile was a question of fact to be ascertained by the jury.

While the evidence adduced by the defendant presents a sharp conflict with that of the plaintiff and the jury might have been fully warranted in answering either the first or second issue in favor of the defendant, *317we cannot bold as a matter of law tbat tbe evidence was sucb as to impel the court to allow the defendant’s motion for judgment as of nonsuit based upon a demurrer to all of the evidence.

No error.

Stacy, C. J., and BabNHill and 'WiNbobhe, JJ., dissent.