#### RAYMOND POWELL v. MABEL LLOYD.

(Filed 21 November, 1951.)

1. Trial § 22a—

On motion to nonsuit, evidence supporting plaintiff’s claim must be considered in tbe light most favorable to bim, giving him the benefit of every reasonable inference and intendment.

2. Automobiles § 18h (2) —

Evidence tending to show that defendant, driving at nighttime without tail lights in a drizzle of rain and in heavy fog, suddenly stopped her truck without giving warning by hand signal or brake lights, causing a rear-end collision by plaintiff’s following vehicle, is held sufficient to be submitted to the jury upon the issue of negligence. G-.S. 20-129, G-.S. 20-154.

3. Negligence § 17—

The burden of proving contributory negligence rests upon defendant.

4. Negligence § 19c—

Nonsuit on the ground of contributory negligence cannot be granted unless plaintiff’s own evidence, taken in the light most favorable to him, establishes contributory negligence so clearly that no other reasonable inference or conclusion may be drawn therefrom.

*4825. Automobiles § 18h (3) — Plaintiff’s evidence held not to show contributory negligence as a matter of law.

Plaintiff’s evidence tended to show that he was riding his motorcycle following defendant’s truck at nighttime in rain and fog along a highway under repair, with barricades at long intervals in their lane of traffic, that lights from vehicles approaching from the opposite direction interfered with plaintiff’s vision, that as plaintiff got within thirty feet of the truck defendant suddenly stopped her truck 175 feet before reaching a barricade, without giving warning by hand signal or brake lights, that in the emergency thus created plaintiff, traveling fifteen or twenty miles per hour, applied his brakes as hard as prudent on the wet pavement, attempted to go around the truck to his right to avoid collision with oncoming traffic to his left, and that his front wheel cleared the truck on the right but that the back portion of the motorcycle struck the right side of defendant’s rear bumper, resulting in injury to plaintiff and damage to his motorcycle. Held: Plaintiff’s evidence does not disclose contributory negligence as a matter of law, and nonsuit was improvidently granted.

6. Negligence § 2—

Where sudden emergency is created by the negligence of defendant, plaintiff is not required to choose the wisest conduct, but only to choose such conduct as a person of ordinary care and prudence, similarly situated, would have chosen.

7. Automobiles §§ 13a, ISh (3)—

Plaintiff may not be charged with contributory negligence as a matter of law merely because of failure to stop when the lights of oncoming traffic partially blind him and interfere with his vision of the road ahead.

Bakniiill, J., dissenting.

Winbokne and Denny, JL, concur in dissent.

Appeal by plaintiff from Gwyn, J., June Term, 1951, Buhke.

Civil action to recover for personal injury and property damage resulting from a collision between plaintiff’s motorcycle and defendant’s truck.

Plaintiff’s evidence tends to show that on 7 October, 1949, in a rear-end collision between the motorcycle of plaintiff and the pickup truck of defendant, plaintiff sustained a /compound fracture of his leg resulting in serious permanent injury. His motorcycle caught fire and was practically destroyed. The collision happened between Morgan ton and Yal-dese in a curve on Highway 70, which highway is 18 feet hard surface with 3 feet shoulders. The road was under repair. Several barricades were across the right-hand portion some distance to the east and to the west of the point of collision. The barricade nearest the point of collision had been placed there after plaintiff had passed that point about noon going to Morganton. Plaintiff and defendant were both traveling-in an easterly direction toward Valdese, plaintiff behind the defendant. *483It bad been raining and at tbe time was dark, foggy and drizzling rain. Plaintiff’s vision was impaired by approaching cars, tbe lights of which were “shining high” making it difficult for him to see the road ahead. His motorcycle was in good condition, his lights and brakes in good working order, and he was driving with his lights dimmed.

At a distance of 175 feet before reaching the barricade ahead, defendant stopped her truck suddenly directly in front of plaintiff without giving either hand or mechanical signal or otherwise indicating her intention to stop. She had no tail light burning and no brake light in operation. Plaintiff applied his brakes and turned to the right in an effort to miss the truck, but some part of the rear bumper of the truck caught his motorcycle, crushing his leg. His motorcycle stopped with the rear wheel on the hard surface and the front wheel in the edge of the ditch. Plaintiff could not cut to the left because of approaching traffic. On the next day in the sheriff’s office the defendant admitted to Patrolman O’Kelly and to plaintiff’s father that “the wreck was her fault; that she had no tail lights and that she would take care of it and pay the charges.”

Plaintiff testified: “I was traveling 15 to 20 miles per hour. . . . When I started around, getting into the curve, I was about 50 feet from the truck, and I got half way around the curve. ... I had got up to within 30 feet of her before I thought she would stop. . . . She stopped right suddenly. ... I did not notice anything stopped until I got close to it and I did not have time to swerve around and I tried to cut around, and I had my brakes on, and not going over 15 miles when going around that side and the front wheel got by and the rear, something caught in the left side bumper and my leg caught and crushed between it and the bumper. I nearly got around her on her right side. We were both going in the same direction. The reason I did not turn out on the left side was a bunch of cars coming meeting me and I was liable to run straight into those cars; the cars were coming with their lights shining up high and that made it hard for me to see in front. ... I could not see well because of the approaching lights shining up. . . . My motorcycle is made so I can dim my lights and I had them on dim. I do not know whether the lights approaching me were on dim or not, but they were shining up high. . . . She had no tail lights and gave no hand signal. . . . The lights and brakes on my motorcycle were in good shape and the brakes were working.”

At the close of plaintiff’s evidence, a nonsuit was predicated upon the contributory negligence of the plaintiff. From this ruling the plaintiff appealed, assigning errors.

*484 Mull, Patton & Graven for plaintiff, appellant.

Horton & Garter for defendant, appellee.

ValesttiNE, J.

Tbe question on this appeal is the correctness of the ruling below allowing the defendant’s motion for judgment of nonsuit. Defendant offered no evidence, but plaintiff’s evidence made out a case of actionable negligence against her. Therefore, if the judgment of the court below is sustained, it must be upon the basis that plaintiff’s own evidence proved as a matter of law that he was guilty of contributory negligence. Upon a motion for nonsuit the plaintiff is always entitled to have the evidence which tends to support his position considered in the light most favorable to him. He is entitled to the benefit of every inference and intendment which reasonable minds can logically draw from his evidence. Nash v. Royster, 189 N.C. 408, 121 S.E. 356.

Unquestionably, there was abundant evidence tending to show negligence on the part of defendant. She drove her truck on a wet slippery highway in a drizzle of rain and in a heavy fog without tail lights or brake lights while meeting heavy traffic with glaring lights. She stopped her truck suddenly and without warning in the path of the plaintiff. The evidence tended to show not only a failure of defendant to observe the rules of the prudent man under the circumstances, but also showed a violation of statutes regulating the operation of motor vehicles on the highways. G.S. 20-129; Gr.S. 20-154. Evidence of such conduct on the part of defendant was sufficient to raise a jury question upon defendant’s negligence. Joyner v. Dail, 210 N.C. 663, 188 S.E. 209; Tarrant v. Bottling Co., 221 N.C. 390, 20 S.E. 2d 565; Conley v. Pearce-Young-Angel Co., 224 N.C. 211, 29 S.E. 2d 740.

The burden of proving contributory negligence rests upon the defendant. By her motion for nonsuit, defendant contends that from plaintiff’s evidence there was sufficient showing of contributory negligence to preclude his recovery. This calls for the application of the rule that judgment of nonsuit on the ground of contributory negligence should not be granted unless the evidence of plaintiff, taken in the light most favorable to him, establishes such negligence so clearly that no other reasonable inference or conclusion may be drawn therefrom. Dawson v. Transportation Co., 230 N.C. 36, 51 S.E. 2d 921; Winfield v. Smith, 230 N.C. 392, 53 S.E. 2d 251; Atkins v. Transportation Co., 224 N.C. 688, 32 S.E. 2d 209; Hampton v. Hawkins, 219 N.C. 205, 13 S.E. 2d 227; Hobbs v. Drewer, 226 N.C. 146, 37 S.E. 2d 121; Cole v. Koonce, 214 N.C. 188, 198 S.E. 637; Manheim v. Taxi Corp., 214 N.C. 689, 200 S.E. 382.

With respect to a nighttime collision, this Court has said: “The duty of the nocturnal motorist to exercise ordinary care for his own safety does not extend so far as to require that he must be able to bring his *485automobile to an immediate stop on the sudden arising of a dangerous situation which he could not reasonably have anticipated. Any such requirement would be tantamount to an adjudication that it is negligence to drive an automobile on a highway in the nighttime at all. ... It is a well established principle in the law of negligence that a person is not bound to anticipate negligent acts or omissions on the part of others; but in the absence of anything which gives or should give notice to the contrary, he is entitled to assume and to act upon the assumption that every other person will perform his duty and obey the law and that he will not be exposed to danger which can come to him only from the violation of duty or law by such other person.” Chaffin v. Brame, 233 N.C. 377, and cases there cited.

In examining the evidence in the instant case in the light of the applicable principles of law, we have this factual situation: On the evening of 7 October, 1949, the defendant was operating a pickup truck in an easterly direction along Highway 70 around a curve between Morganton and Yaldese. It was after dark in the evening, had been raining and at the time was drizzling rain and very foggy. The hard surface highway was slick. The road was undergoing repairs and some barricades had been placed along the southern half of the highway, but there were no barricades for a considerable distance in front and behind defendant’s truck. Defendant had no tail lights burning and no brake light in operation. Plaintiff was riding his motorcycle in the same direction behind defendant’s truck. At the point of collision, a number of automobiles with “lights shining high” were meeting plaintiff and defendant. The lights of the oncoming cars did not completely blind plaintiff, but interfered with his vision so that he could not see the road ahead clearly. When plaintiff got within 30 feet of defendant, she suddenly and without warning of any kind stopped her truck on the highway directly in front of plaintiff, a distance of 175 feet before she reached the barricade ahead. Plaintiff applied his brakes, which w^ere in good condition, and turned to the right in an effort to miss defendant’s truck. He nearly got around the truck, but the back portion of his motorcycle caught the right end of the rear bumper of defendant’s truck in such a way as to crush and break his leg, thereby seriously and permanently injuring him. His motorcycle came to rest with the front wheel in the edge of the ditch and the rear wheel still on the hard surface portion of the highway. Plaintiff could not turn to the left because of defendant’s position on the highway and the presence of oncoming traffic. He dimmed his lights in recognition of the rights of approaching motorists. There was no evidence that plaintiff drove his motorcycle at any time at a rate of speed greater than 15 or 20 miles per hour. The hard surface portion of the highway was 18 feet with 3 feet shoulders on each side. Plaintiff applied *486Ms brakes, but a complete application of tbe brakes upon a wet road may have produced more disastrous results. Defendant admitted full responsibility without attributing any negligence to the plaintiff.

In these circumstances requiring instant action, the plaintiff according to his testimony did not have sufficient time to medítate and deliberate on the course of action necessary for best results, and in judging his conduct consideration must be given to the sudden emergency with which he was confronted. He should not be held to the same deliberations or circumspection as are required in ordinary conditions. Hinton v. R. R., 112 N.C. 587, 90 S.E. 756. “The standard of conduct is that of the prudent man under like circumstances. According to plaintiff’s testimony the emergency was created by the negligent conduct of the defendants. Under these circumstances the rule is stated in Ingle v. Cassady, 208 N.C. 497, 181 S.E. 562, as follows: 'One who is required to act in emergency is not held by the law to the wisest choice of conduct, but only to such choice as a person of ordinary care and prudence, similarly situated, would have made.’” Winfield v. Smith, supra; Butner v. Spease, 217 N.C. 82, 6 S.E. 2d 808; Beck v. Hooks, 218 N.C. 105, 10 S.E. 2d 608; Sparks v. Willis, 228 N.C. 25, 44 S.E. 2d 343; Wall v. Bain, 222 N.C. 375, 23 S.E. 2d 330.

The plaintiff cannot be charged with contributory negligence as a matter of law merely because he did not stop when the high shining lights of oncoming traffic partially blinded him and interfered with his vision of the road ahead. This principle has been fully recognized and applied in this jurisdiction. Cummins v. Fruit Co., 225 N.C. 625, 36 S.E. 2d 11; Leonard v. Transfer Co., 218 N.C. 667, 12 S.E. 2d 729; Cole v. Koonce, supra; Williams v. Express Lines, 198 N.C. 193, 151 S.E. 197; Clarke v. Martin, 215 N.C. 405, 2 S.E. 2d 10. Whether the plaintiff could have avoided the collision and its resulting injury or whether his conduct was different from that of any reasonably prudent man in the same or similar circumstances are questions about which reasonable minds may honestly differ. We cannot say as a matter of law that the single inference of contributory negligence and no other may be drawn from plaintiff’s evidence.

Therefore, the judgment of the court below is

Reversed.

BabNhill, J.,

dissenting: The statement of facts contained in the majority opinion presents a general picture of the circumstances surrounding the collision which is the basis of this action. Yet, in my opinion, some of plaintiff’s testimony is, under the circumstances of this case, given undue weight, while portions thereof are not accorded their proper significance. On the question of nonsuit, the statute, G.S. 1-183, *487requires us to consider all the testimony of plaintiff in the light most favorable to him. This does not authorize us to minimize or ignore uncontradicted, unequivocal, positive facts to which plaintiff himself testified. Atkins v. Transportation Co., 224 N.C. 688.

Plaintiff and defendant were traveling eastward on Highway 70, going from Morganton toward Yaldese, in a curve, and the accident happened about the center of the curve. The south side of the road — the plaintiff’s and defendant’s right-hand side — was under repair, and fifteen or twenty barricades were placed along the road to prevent travel on that side. This, in effect, converted the road into a one-lane highway, vehicles going-east being required, as they met oncoming traffic, to turn to the right, decrease speed or stop if at or near a barricade, and permit the westbound vehicles to pass in safety. This condition was known to the plaintiff.

Non constat defendant’s truck had no tail light, plaintiff had seen and knew the truck was traveling ahead. He saw it when he was 50, 75, or 100 feet to the rear and it was within his view as they proceeded along the highway. The truck stopped suddenly. The driver gave no hand signal of her intent to stop. No brake light came on as she applied her brakes. These are facts which could not be within her knowledge unless he could see the truck at the time. That he saw it is implicit in his testimony, or else all that he said in that respect was without foundation in fact.

Hence, this is not a case of ordinary travel, where the motorist to the rear has no cause to anticipate that the forward vehicle will stop, but may assume that it will continue on its way. Here plaintiff was on constant notice that defendant’s driver might be compelled to stop at any moment, and the nearness of the oncoming traffic gave him positive warning that moment was at hand. The notice thus accorded plaintiff was as positive and direct as any hand signal or brake light could have been.

The absence of a tail light has no material bearing on this- case. It is required so as to give notice to vehicles approaching from the rear. As plaintiff had already seen the truck and knew of its presence, no further notice was essential, and the observed absence of such light “put him on notice that he could not rely upon those lights.” Austin v. Overton, 222 N.C. 89. Likewise, the statement of the driver, “It is my fault,” has no particular significance in respect to the question of contributory negligence. At most it only concedes the truck driver’s own negligence. Austin v. Overton, supra.

If there was any sudden emergency, it was created, in part at least, by plaintiff in driving so close to the truck, with full’knowledge the truck would be compelled to stop on account of the oncoming traffic, that he could not stop or even attempt to stop without creating a dangerous *488situation. Being a party to tbe creation of tbe emergency, be cannot invoke tbe sudden emergency doctrine in exculpation of bis own conduct.

Tbe rule of sudden emergency cannot be invoked by one wbo bas brought tbat emergency upon bimself by bis own wrong or wbo bas not used due care to avoid it. 1 Blasbfield, pt. 2, p. 547, see. 669, and numerous cases cited in notes. See also 38 A.J. 876; Bentson v. Brown, 203 N.W. 380, 38 A.L.R. 1417; Anno. 37 L.R.A., N.S. 54.

Plaintiff was gradually gaining on tbe truck. He was 75 or 100 feet behind when be first saw it and was within 30 feet when be saw it stop suddenly in tbe middle of tbe road. At tbat time be was so close to tbe truck tbat be knew, not only tbat be could not stop but also, tbat it was dangerous to attempt to stop by tbe full application of bis brakes. “I knew if I tried to stop I would slide on.”

Under these circumstances as disclosed by this record, it would seem to me tbat tbe conclusion plaintiff, by bis own negligent conduct, materially contributed to tbe creation of tbe emergent situation about which be complains is inescapable.

So tbe case comes to this. The plaintiff was rounding a curve on a one-lane road, traveling to tbe rear of a truck be saw and knew was ahead. He was aware tbat vehicles approaching from tbe opposite direction would force tbe truck to turn to tbe right, stop, and yield tbe right of way, and tbat be would have to do likewise. He was aware of tbe wet, slippery condition of tbe road, and be saw tbe oncoming traffic which was so close tbe lights affected bis capacity to see. He knew tbat this indicated tbe truck would likely be compelled to stop. Yet be continued to narrow tbe distance between him and tbe truck to such an extent tbat when it did stop, be was so close it was impossible for him to avoid tbe collision. If this does not indicate tbat be drove bead-on into a dangerous situation and failed to exercise due care for bis own safety, I find it difficult to perceive bow tbe operator of a vehicle could be held guilty of negligence as a matter of law when be plows into a vehicle be knows is just ahead.

A motorist is held to tbe duty of seeing what be ought to have seen. Wall v. Bain, 222 N.C. 375; Cox v. Lee, 230 N.C. 155. A fortiori be is charged with tbe duty to .regard and pay due attention to tbe conditions be actually knows and observes and which materially affect bis duty to exercise due care under tbe circumstances then existing. Therefore, tbe case comes squarely within tbe first line of decisions cited in Tyson v. Ford, 228 N.C. 778.

Chaffin v. Brame, 233 N.C. 377, relied on in tbe majority opinion is clearly distinguishable. In tbat case tbe circumstances were such tbat tbe plaintiff did not know of tbe presence of defendant’s parked truck *489until tbe very moment of tbe collision. Barlow v. Bus Lines, 229 N.C. 382, is similarly distinguishable.

There is a presumption in favor of tbe judgment entered, and tbe burden rests upon tbe appellant to show error. This, in my opinion, be has failed to do. I therefore vote to affirm.

WiNBORNB and DenNY, JJ., concur in dissent.