#### HELEN MILLS WEBB and B. W. WEBB v. GUY HUTCHINS.

(Filed 8 October, 1947.)

1. Automobiles § 18g (3): Evidence § 45—

A patrolman not present at the time of the accident is not competent to give an opinion as to the speed of a car involved in the collision.

2. Automobiles § 13—

The rule that a motorist traveling on his right or seasonably turning thereto has the right to assume that a car approaching from the opposite direction will comply with G. S., 20-148, and turn to its right in time to avoid a collision, does not exculpate a motorist who runs completely off the road to his right, loses control, and hits a car standing still completely off the hard surface on its left side of the highway with its lights on, since the rule merely absolves a motorist from blame if he continues at a reasonable rate of speed in his line of travel in reliance on the assumption, but does not relieve him from the duty of knowing the position of his car on the highway from his own observation.

3. Automobiles § 8d—

The parking of an automobile on its left side of the highway completely off the traveled portion thereof under the circumstances of this case was not in violation of statute.

4. Automobiles § 21—

Plaintiffs were guests in an automobile which had stopped on its left side of the highway completely off the hard surface in order for them to alight. The ear was struck by defendant’s car approaching from the opposite direction. Held,: Even conceding that defendant’s evidence disclosed negligence on the part of the driver of the car in which plaintiffs were *2riding in having Ms .lights focused down the highway so' bright as to blind defendant, such negligence would not preclude recovery by plaintiffs unless the sole proximate cause of the injury.

Appeal by plaintiffs from Pittman, J., at June-July Term, 1947, of RuthekeoRD.

New trial.

Civil action to recover damages for personal injuries resulting from the alleged negligent operation of an automobile.

On the night of 20 June 1946, Eoy L. Crow and wife, who live about 3 y% miles from Spindale, “picked up” plaintiffs, who live on the same highway nearer Spindale, and went to a picture show. On the way back home Crow drove his car to the left of the highway, completely off the hard surface, in front of the "Webb home, for the purpose of discharging his guest passengers. After the Webbs alighted they stood and talked to the Crows for about thirty minutes. Defendant approached on his automobile, going toward Spindale. He drove off the highway 39 yards from the Crow ear, continued on until he hit a tree near the parked car, crushed the front wheel of his car, “glanced around” the tree to the left, hit the Crow car and knocked it 25 feet, struck Mrs. Webb and threw or carried her 65 feet down the road, and stopped in the road ditch 24 yards beyond the point of impact. After he left the.hard surface his wheels cut trenches in the dirt one to two inches deep. After the front wheel was crushed the car plowed up the dirt several inches deep and from 12 to 14 inches wide to the point where the car stopped. Mrs. Webb was seriously injured. .

Plaintiffs’ evidence tends to show-that the Crow car had its headlights dimmed and the car was standing so as to focus the lights away from the road across a field. Defendant testified the lights were focused down the road in the direction from which he was approaching and were sufficiently bright to blind him. This evidence in respect to the lights and evidence concerning the speed at which defendant was traveling is the only substantially conflicting testimony respecting the actual occurrence appearing in the record.

Defendant testified: “I pulled to the right for I thought he was coming facing me. I was thinking he would get back on his side of the highway. . . . His lights were blinding me when I left the road 39 yards below where his car was parked.”

Feme plaintiff seeks to recover compensation for physical injuries and her husband seeks to recover damages for loss of services of his wife and also hospital, medical, and other expenses incurred by him in the necessary treatment of his wife’s injuries.

Appropriate issues were submitted to the jury and they answered the issue of negligence in favor of defendant. The court entered judgment on the verdict and plaintiffs appealed.

*3 Hamrick ■& Hamrich for plaintiff appellants.

Oscar J. Mooneyham and J. Paul Head for defendant appellee.

BaRkthill, J.

Tbe plaintiffs assign as error tbe refusal of tbe court below to permit tbeir witness, a patrolman wbo was not present at tbe time of tbe accident, to give bis opinion of tbe speed of defendant’s car. Tbe assignment is without merit. Tyndall v. Hines Co., 226 N. C., 620.

Tbe court instructed tbe jury in part as follows:

> “In tbis case, gentlemen of tbe jury, tbe defendant Hutcbins, as be drove along tbis highway and as be saw these lights, tbe law says be bad tbe right to assume that that car was in motion and it was on its right side of tbe road. Any motorist traveling tbe highways of North Carolina has tbe right .to assume that tbe man be is meeting, or that tbe man passing him, is going to drive bis car in a careful and prudent manner and to follow tbe rules of tbe road, as any prudent man would do in driving a motor vehicle on tbe highways of tbe State of North Carolina.”

Thus tbe court stated, in effect, that even though tbe Crow car was standing on its left, and defendant’s right, band side of tbe road, completely off tbe bard surface or traveled portion of tbe highway, with its lights focused across tbe field and not down tbe road, defendant bad a right to assume it was in motion on its-right band side of tbe road. In tbis there was error prejudicial to tbe plaintiffs.

In undertaking to sustain tbis charge tbe defendant relies on a statement in 5 A. J., 752, as follows:

> “It has also been held, in tbis connection, that a driver of an automobile on a public highway at night, wbo sees in front of him tbe headlights of another car facing him, has a right to assume to a reasonable extent that such ear is in motion and will be operated in conformity with tbe law of tbe road; be cannot be charged with contributory negligence as a matter of law in failing to stop or to discover that the other car is stalled.”

Tbis statement is bottomed on tbe decision in Whitworth v. Riley, 269 P. 350 (Okla.), 59 A. L. R., 584. It was there held that where a motorist stops bis car, in the nighttime, on his left of tbe center of a highway with its headlights on and leaves it thus standing without taking any precaution to indicate to drivers going in the opposite direction, by a proper signal or warning, that bis ear is in a dangerous position, and that oncoming drivers cannot pass to their right, and that a clear passageway is available to tbeir left of the center of tbe highway, is guilty of negligence and tbe oncoming motorist has a right to assume, in tbe absence of such warning, from tbe fact that tbe headlights are on, that tbe stalled-ear is in motion and will be operated in conformity with tbe law.

*4Tbis rule bas not been adopted in tbis jurisdiction. Even if we concede that in a proper case it would be followed here, it bas no application to tbe facts in tbis case as they appear in tbis record. There, tbe defendant’s car was standing on tbe traveled portion of tbe highway, in tbe line of travel of oncoming cars, so that an approaching motorist continuing on bis right band side of tbe road would probably collide therewith. Here, tbe Crow car was completely off tbe bard surface and tbe defendant, bad be proceeded on bis right'side thereof, could have passed in safety. Indeed, tbe uneontradicted evidence tends to show that a number of other ears did so pass.

Furthermore, that rule was applied in an action between tbe two motorists. Here tbe plaintiffs were bystanders who may not be held responsible for any contributory negligence of Crow. Even if applicable to him, tbe doctrine of concurring negligence would be controlling here.

A motorist who is operating bis vehicle on, or who seasonably turns to, his right of tbe center of tbe road when meeting an oncoming car, as required by Gr. S., 20-148, has a right to assume that tbe other driver will likewise turn to bis right so that tbe two vehicles may pass each other in safety. Brown v. Products Co., 222 N. C., 626, 24 S. E. (2d), 334; Reeves v. Staley, 220 N. C., 573, 18 S. E. (2d), 239; Hoke v. Greyhound Corp., 227 N. C., 412.

Even so, one who operates a motor vehicle upon a public highway is under tbe duty to ascertain bis own position on tbe highway from bis own observation. Tbe rule does not justify an assumption on bis part, from tbe fact tbe other ear is apparently to bis right, that be himself must be on bis left side of tbe road, and does not excuse bis conduct in turning completely off tbe highway. It merely bolds him guiltless if be fails to stop or turn off onto tbe dirt shoulder of tbe road, but continues at a reasonable rate of speed in bis line- of travel.

There is no statute or rule in tbis State which prohibited tbe parking of Crow’s automobile on its left side of tbe highway, completely off tbe traveled portion thereof. If its lights were focused down tbe highway and were so bright they blinded tbe defendant, be may be guilty of an act of negligence, but, as to these plaintiffs, tbis would not exculpate tbe defendant for bis negligence, if any, unless it was tbe sole proximate cause of tbe resulting injury to plaintiffs. Tbis is a question for tbe jury.

Tbe indicated error in the charge entitles plaintiffs to a

New trial.