#### H. B. STEPHENS v. BEN JOHNSON.

(Filed 1 March, 1939.)

1. Automobiles §§ 12e, 18h — Instruction that attempt to cross “through highway” intersection in front of truck driven at excessive speed constituted negligence per se held error.

Plaintiff’s truck was traveling along a “through highway.” Defendant was driving his car along an intersecting side road. The vehicles collided at the intersection, the front of the truck striking the side of defendant’s ear. The court instructed the jury that if defendant saw the truck approaching the intersection at a high or improper rate of speed, and notwithstanding this fact continued on into the intersection in an attempt to cross said highway ahead of the truck, such action would constitute negligence. Held,: The instruction runs counter to the statute, ch. 407, sec. 120, Public Laws of 1937, and is error. Sebastian v. Motor Lines, 213 N. O., 770, cited as controlling.

3. Automobiles § 18h: Negligence § 20—

It is error for the charge on the issue of negligence involved in the case to omit any reference to proximate cause.

Appeal by defendant from Clement, J., at November Term, 1938, of Caswell.

Civil action to recover damages for injury to plaintiff’s truck alleged to bave been caused by tbe negligent operation of defendant’s automobile wben tbe two collided at tbe intersection of a dirt road known as Cobb Memorial School Road and Highway No. 158, the latter being designated as a “Through Highway.”

Tbe plaintiff’s truck was traveling easterly on Highway No. 158. Tbe defendant approached tbe intersection from tbe south, in bis Model T coupe, loaded with tobacco. “It looked like be speeded up and tried *134to beat me across,” according to tbe testimony of tbe driver of tbe truck. The machines collided near the center of the road, tbe front of tbe truck striking tbe side of defendant’s car.

There was a verdict and judgment for plaintiff, from which the defendant appeals, assigning errors.

0. L. Pemberton and Emerson T. Sanders for plaintiff, appellee.

Glidewell & Glidewell for defendant, appellant.

Stacy, C. J.

Tbe following special instruction, given at tbe request of tbe plaintiff, forms tbe basis of one of defendant’s exceptive assignments of error:

“That if the driver of tbe Johnson car saw tbe Stephens truck approaching tbe intersection at a high or improper rate of speed, and notwithstanding this fact continued on into the intersection in an attempt to cross said highway ahead of tbe Stephens truck, such action on the part of tbe driver of the Johnson car would constitute negligence.”

This instruction runs counter to tbe statute, cb. 407, Public Laws 1937, sec. 120, and is at variance with what was said in Sebastian v. Motor Lines, 213 N. C., 770, 197 S. E., 539. Eeference to the Sebastian case will suffice to make clear the error. It is also observed that tbe instruction omits any reference to proximate cause. Hurt v. Power Co., 194 N. C., 696, 140 S. E., 730.

For the error as indicated, a new trial must be awarded. It is so ordered.

New trial.