#### MARSELL WOMBLE v. BERRY ELSTER McGILVERY.

(Filed 14 January, 1959.)

Automobiles § 411—

Plaintiff’s evidence tending to show that plaintiff was intoxicated and was walking in a street near the edge of the .pavement, facing traffic, that defendant’s car was approaching from the opposite direction on the right side of the street at a lawful speed, that .plaintiff saw the car but paid no attention to it, and that the car struck plaintiff and came to an immediate stop, together with testimony of a witness for plaintiff that plaintiff moved out into the street just before the accident is held insufficient to be submitted to the jury on the issue of defendant’s negligence.

Appeal by plaintiff from Williams, J., February-March Term, 1958, of Robeson.

This is a civil action to recover for personal injuries sustained when the plaintiff was hit by an automobile owned and operated by the defendant on Madison Street, just outside the corporate limits of the Town of Fairmont, in Robeson County, North Carolina, on 11 December 1955, about 10:45 p.m.

The plaintiff’s evidence tends to show that he had been drinking that evening and had been in a fight and got cut rather seriously about an hour and a half before the accident complained of herein; that after he got cut he went into a nearby field and laid down; that he did not know how he got into the street; that he was walking near the edge of the pavement, facing traffic; that he saw the defendant’s car approaching but paid no attention to it "until it got right on me.” One of the plaintiff’s witnesses testified that just before the accident the plaintiff “moved out into the road.” The plaintiff was going north on the street or road and the defendant’s car was being driven in a southerly direction. The speed of the defendant’s car was fixed by one of the plaintiff’s witnesses at not more than 20 miles per hour. This witness further testified that defendant’s car was being operated on its right side of the street and did not move at all after 'it came in contact with the plaintiff; that plaintiff was knocked not more than four or five feet by the car. The plaintiff testified “I don’t remember how much drinking I did. I drank about half a pint in all. * * * I sure don’t remember much else, after drinking that half pint. *419* * I had moved off that street and was trying to make it home. I was going in the opposite direction from home, but I thought I was going home. I didn’t know exactly where I was going.”

The defendant moved for judgment as of nonsuit at the close of plaintiff’s evidence. The motion was allowed and the plaintiff appeals, assigning error.

Hackett Weinstein for plaintiff.

Johnson & Biggá for defendant.

Per Curiam.

In our opinion the plaintiff’s evidence was insufficient to establish actionable negligence on the part of the defendant. Hence, the ruling of the court below will be upheld.

Affirmed.