#### GROVER MANHEIM, by His Next Friend, L. W. MANHEIM, v. BLUE BIRD TAXI CORPORATION and W. C. CARNELL.

(Filed 4 January, 1939.)

1. Automobiles § 18g—

Evidence tending to show taxi was being driven at excessive speed along street and hit plaintiff: pedestrian, who was crossing the street at an intersection, held, sufficient to be submitted to the jury on the issue of negligence.

2. Automobiles §§ 18c, 18g — Conflicting evidence as to whether minor used due care in crossing street held to raise issue for jury.

Plaintiff’s evidence tended to show that he, a minor nine years of age, paused, looked up and' down the street before attempting to cross the street at an intersection, saw no cars approaching, and had gone over half way across the street when he was struck by a taxi which was being driven at an excessive speed. Defendants’ evidence was to the effect that plaintiff failed to pause, look or listen and ran headlong into the path of the approaching taxi. Held: The conflicting evidence raises questions of fact which were properly submitted to the jury on the issue of whether plaintiff used due care for his own safety in the light of his age, intelligence, and capacity.

3. Negligence § 19b—

A nonsuit on the ground of contributory negligence may not be granted unless the evidence is so clear on that issue that reasonable minds could draw no other inference.

*6904. Negligence § 11—

A person, must exercise for his own safety that care which a reasonably prudent person would have exercised under the circumstances, which rule is constant, although the degree of care may vary with the exigencies of the occasion.

5. Negligence § 12—

Whether a minor exercises due care for his own safety must be determined in the light of his intelligence, age, and capacity.

Appeal by tbe corporate defendant from Bivens, J., at March Term, 1938, of Guileobd.

No error.

Leonidas Ilerbin and Frazier & Frazier for plaintiff, appellee.

Jas. MacClamroch and A. C. Davis for defendant, appellant.

ScheNck, J.

This is an action to recover damages for personal injury alleged to have been suffered by tbe plaintiff tbrougb tbe negligence of tbe defendants. Tbe defendants’ motions for judgment as in case of nonsuit were denied, tbe usual issues of negligence, contributory negligence and damage were submitted and answered in favor of tbe plaintiff, and from judgment predicated upon tbe verdict, tbe corporate defendant appealed, assigning errors.

Tbe assignment of error most seriously pressed on appeal is that to tbe refusal of tbe court to allow motion for judgment as in case of non-suit lodged wben plaintiff bad rested bis case and renewed at tbe close of all tbe evidence. C. S., 567. In determining whether tbe court erred in refusing to allow this motion we must give tbe evidence such construction as is most favorable to tbe plaintiff. Given this interpretation, tbe evidence tends to establish tbe following facts:

Tbe plaintiff was a minor about nine years of age. Tbe appellant, tbrougb its agent, W. 0. Carnell, was operating a taxicab on North Elm Street in tbe city of Greensboro on 19 June, 1937. About 10 :40 a.m. on said date tbe plaintiff attempted to cross North Elm Street at tbe intersection of Bishop Street with North Elm Street, and wben be bad gotten about two feet beyond tbe center line of North Elm Street be was struck and injured by tbe taxicab of tbe appellant proceeding in a southern direction on said street. There were cars parked on both sides of North Elm Street, and tbe distance between tbe cars on one side of tbe street to tbe cars on tbe other side thereof was about 35 feet. Tbe plaintiff came from behind a car on tbe east side of tbe street, paused, and looked up and down tbe street, north and south, and saw no car approaching from either direction, and then proceeded across tbe street and was struck by tbe appellant’s taxicab wben be bad proceeded about 19% feet across tbe street, which took him about two feet beyond tbe center line of tbe street. Tbe plaintiff did not see tbe taxicab before be *691was struck. Tbe taxicab was being driven from 40 to 45 miles per bour, and left skid marks on tbe street about 43 feet long wben it was stopped. Tbe intersection of North Elm Street and Bisbop Street is in a business section of tbe city of Greensboro and tbe traffic on North Elm Street in this location is heavy.

Tbe appellant does not seriously contend that there was insufficient evidence to be submitted to tbe jury upon tbe first issue involving tbe actionable negligence of tbe defendant, but does seriously contend that tbe evidence establishes tbe contributory negligence of tbe plaintiff. While tbe appellant’s evidence tends to show that tbe plaintiff failed to pause, look and listen, before crossing North Elm Street and ran bead-long into tbe path of tbe approaching taxicab which was being operated at a lawful rate of speed, this evidence is in direct conflict with tbe evidence of tbe plaintiff, and questions of fact are thereby raised, and it was proper for tbe court, under such circumstances, to submit these questions to tbe jury under tbe issue involving tbe contributory negligence of tbe plaintiff.

“It is a familiar rule that a judgment of involuntary nonsuit on tbe ground of contributory negligence of tbe plaintiff cannot be rendered unless tbe evidence is so clear on that issue that reasonable minds could draw no other inference. Pearson v. Luther, 212 N. C., 412, 193 S. E., 739; Mulford v. Hotel Co., 213 N. C., 603; Corum v. Tobacco Co., 205 N. C., 213, 171 S. E., 78. This rule has nothing to do with tbe credibility of witnesses. It applies equally to tbe testimony of tbe plaintiff as to that of other witnesses; Tomberlin v. Bachtel, 211 N. C., 265, 268, 189 S. E., 769; Matthews v. Cheatham, 210 N. C., 592, 188 S. E., 87; Smith v. Coach Line, 191 N. C., 589, 591, 132 S. E., 567; and be is entitled also to tbe benefit of tbe rule that upon tbe motion to nonsuit tbe evidence must be considered in tbe light most favorable to tbe plaintiff. Cole v. R. R., 211 N. C., 591, 191 S. E., 353; Lynch v. Telephone Co., 204 N. C., 252, 167 S. E., 847; Gilbert v. Wright, 195 N. C., 165, 141 S. E., 577.” Cole v. Koonce, ante, 188.

In determining whether tbe plaintiff failed to use tbe degree of care required of him, that is whether be breached tbe rule which held him to that degree of care which a reasonably prudent person would have exercised under tbe circumstances, which rule is constant, although tbe degree of care may be varied by tbe exigencies of tbe occasion, Diamond v. Service Stores, 211 N. C., 632; Small v. Utilities Co., 200 N. C., 719, a question of fact was presented to be answered by tbe jury in tbe light of tbe intelligence, age and capacity of tbe plaintiff. Alexander v. Statesville, 165 N. C., 527.

We have examined tbe other exceptive assignments of error in tbe record and find no prejudicial error.

No error.