#### WILLIAM A. COOK v. J. D. HOBBS and E. H. BESHERS.

(Filed 8 April, 1953.)

1. Automobiles §§ Si, 18h (2) —

Plaintiff’s allegations and evidence to tbe effect that be was already in an intersection when defendant drove bis car into tbe intersection from plaintiff’s right, at excessive speed without proper caution and maintenance of proper lookout, is held sufficient to overrule defendant’s motion to nonsuit. G.S. 20-141 (a), G.S. 20-155 (b).

2.- Automobiles § 18i: Trial § 31b—

A charge as to tbe duty of a motorist to stop in obedience to a red flashing signal as required by municipal ordinance before entering an intersection within tbe municipality must be held for prejudicial error when there is no allegation in tbe complaint making any reference to such signals or municipal ordinance.

Appeal by defendants from Crisp, Special Judge, and a jury, at November Term, 1952, of Cabake.tfs.

Civil action arising out of a collision between two motor vehicles at a street intersection within the corporate limits of a municipality.

These are the facts:

1. East Eleventh Street, which runs east and west, and North College Street, which runs north and south, intersect and cross each other in a residential district in the City of Charlotte.

2. At one o’clock in the morning on 1 January, 1952, an eastbound Ford owned and operated by the plaintiff William A. Cook, which approached and entered the intersection on East Eleventh Street, and a northbound Cadillac owned by the defendant J. D. Hobbs and operated for him by his agent, the defendant E. PI. Beshers, which approached and entered the intersection on North College Street, collided on the intersection, allegedly causing personal injury to the plaintiff and damage to his Ford.

3. The plaintiff sued the defendants to recover damages for the personal injury and property damage allegedly suffered by him in the collision. His complaint charged that the’ Ford reached and entered the intersection substantially in advance of the Cadillac, and that the defend*491ant E. H. Besbers was guilty of actionable negligence in tbe management of tbe Cadillac in these four respects : (1) Tbat be failed to keep a reasonably careful lookout; (2) tbat be drove tbe Cadillac “without due caution and circumspection and at a speed ... so as to endanger” tbe person and property of tbe plaintiff in violation of G.S. 20-140; (3) tbat be drove tbe Cadillac at a speed greater than was reasonable and prudent under tbe conditions then existing in violation of G.S. 20-141 (a) ; and (4) tbat be failed to yield tbe right of way at tbe intersection to tbe plaintiff whose Ford was already within tbe intersection in violation of G.S. 20-155 (b). Tbe defendants answered,-denying actionable negligence on their part and pleading contributory negligence on tbe part of tbe plaintiff.

4. Tbe plaintiff and tbe defendants offered evidence at tbe trial tending to establish their respective allegations. They stipulated at tbat time tbat tbe City of Charlotte installed red and yellow flashing signals at tbe intersection before tbe collision under a city ordinance embodied in Section 25 of Article 3 of Chapter 2 of tbe Code of tbe City of Charlotte; tbat tbe flashing signals were working at tbe time of tbe collision; and tbat Section 25 of Article 3 of Chapter 2 of tbe Code of tbe City of Charlotte was couched in this language: “Whenever flashing red or yellow signals are used, .they shall require obedience by vehicular traffic as follows : (a) Flashing red (stop signal). When a red lens is illuminated by rapid intermittent flashes, drivers of vehicles shall stop before entering tbe nearest crosswalk at an intersection or at a limit line when marked, and tbe right to proceed shall be subject to tbe rule applicable after making a stop at stop sign, (b) Flashing yellow (caution signal). When a yellow lens is illuminated with rapid intermittent flashes, drivers of vehicles may proceed through tbe intersection or along said street or highway past such signal only with caution.” Tbe complaint did not mention either tbe flashing signals or tbe city ordinance in any way whatever.

5. These issues were submitted to tbe jury: (1) Was tbe plaintiff damaged by tbe negligence of tbe defendants, as alleged in tbe complaint? (2) Was tbe plaintiff guilty of contributory negligence, as alleged in tbe answer? (3) What amount, if any, is plaintiff entitled to recover of tbe defendants for personal injury? (4) What amount, if any, is plaintiff entitled to recover of tbe defendants for property damage? Tbe jury answered the first issue “Yes,” tbe second issue “No,” tbe third issue “$450.00,” and tbe fourth issue “$700.00.” Tbe court entered judgment for tbe plaintiff and against the defendants for $1,150.00 and the costs of tbe action, and tbe defendants appealed, assigning errors.

J ohn Hugh Williams for plaintiff, appellee.

Hartsell ■& Hartsell, William L. Mills, Jr., and Jones & Small for defendants, appellants.

*492Ebvin, I.

The defendants make these assertions by their assignments of error:

> 1. That the court erred in refusing to dismiss the action upon a com-pulso2’y nonsuit at the close of all the evidence.

> 2. That the court erred in its instructions to the jury.

The evidence warranted the submission of the issues of actionable negligence and contributory negligence to the jury. In consequence, the refusal to nonsuit was proper.

The cause must be tried anew, however, because of error in the portion of the charge covered by the sixth exception. Although the complaint made no reference whatever to the flashing signals or the city ordinance, the judge instructed the trial jurors, in substance, that it would be their duty to answer the first issue “Yes” in case they found by the greater weight of the evidence that the driver of the Cadillac entered the intersection without first stopping in obedience to a red flashing signal and the city ordinance and in that way proximately caused injury to the plaintiff’s person or damage to his Ford. In so doing, the judge set at naught the fundamental procedural principle that a plaintiff cannot recover except on the cause of action set up in his complaint. Moore v. Clark, 235 N.C. 364, 70 S.E. 2d 182; Bowen v. Darden, 233 N.C. 443, 64 S.E. 2d 285; Maddox v. Brown, 232 N.C. 542, 61 S.E. 2d 613; King v. Coley, 229 N.C. 258, 49 S.E. 2d 648; Watson v. Durham, 207 N.C. 624, 178 S.E. 218; Edwards v. Power Co., 193 N.C. 780, 138 S.E. 131, 53 A.L.R. 1404; Geddie v. Williams, 189 N.C. 333, 127 S.E. 423; Dixon v. Davis, 184 N.C. 207, 114 S.E. 8; McNeill v. R. R., 167 N.C. 390, 83 S.E. 704; Wilson v. Holley, 66 N.C. 408; 65 C.J.S., Negligence, section 288.

New trial.