#### CLAUDE STRICKLAND v. W. H. SMITH, Trading as BLOUNT FLORAL COMPANY (BLOUNT FLOWER SHOP, INC.), and W. H. SMITH, Personally.

(Filed 18 September, 1946.)

Automobiles § 22—

Where, in an action by a passenger in an automobile to recover for injuries sustained in collision with a truck, there is no evidence upon which contributory negligence of the driver of the car can be imputed to the plaintiff, a peremptory instruction in plaintiff’s favor upon the issue of contributory negligence is without error.

Appeal by the corporate defendant from Bone, J., at April Term, 1946, of Nash. No error.

Motion for judgment of nonsuit as to W. TL Smith individually was sustained. There was verdict in favor of plaintiff on issues submitted, and from judgment thereon the corporate defendant appealed.

Cooley & May for plaintiff, appellee.

Wilkinson & King for defendant, appellant.

Devin, J.

This case and the case of Kennedy v. Smith, ante, 514, grew out of the same facts, and the two cases were tried together. The facts are set out in the Kennedy case. However, it appeared in this case that plaintiff Strickland was a passenger in the automobile driven by Kennedy at the time of the collision with defendant’s truck. There was no evidence upon which contributory negligence could be imputed to this plaintiff, and the court properly so instructed the jury.

An examination of the other assignments of error brought forward in defendant’s appeal fails to disclose prejudicial error. In the trial we find

No error.