#### PEARL PATE NANTZ v. IVEY LEE NANTZ, RAY STYLES and VICK STYLES.

(Filed 20 September, 1961.)

Automobiles § 41i—

Evidence that the driver of the car in which plaintiff was riding as a passenger was traveling at a speed within the statutory maximum and struck a car entering the highway from a filling station, that he applied brakes 65 to 70 feet prior to the collision, without evidence that the car had entered the highway prior to the time the brakes were applied or that a prudent driver should have anticipated that it would be driven into the highway in violation of G.S. 20-156, is insufficient to be submitted to the jury.

Appeal by plaintiff from Craven, S.J., Special May 1961 Term of McDowell.

Plaintiff, wife of defendant Nantz, seeks damages for personal injuries sustained in a collision between her automobile, operated by her husband, and an automobile owned by Eay Styles, operated by defendant Yiclc Styles. Plaintiff alleges the collision was caused by the joint and concurrent negligence of the respective drivers. The negligence alleged against defendant Nantz is (1) speed in excess of what was reasonable and prudent under existing conditions, (2) failure to keep the motor vehicle under control and reduce speed, and (3) failure to keep a proper lookout. Defendant Nantz denied plaintiff’s allegations of negligence as to him. He pleaded the negligence of Styles as the sole proximate cause of the collision.

The record contains no answer or other pleading by defendants Styles. It does not definitely appear that they have been served.

At the conclusion of plaintiff’s evidence the court allowed the motion of defendant Nantz to nonsuit. Plaintiff excepted and appealed.

Thomas E. White for plaintiff appellant.

W. Harold Mitchell for defendant Ivey Lee Nantz.

Per Curiam.

Plaintiff’s automobile was traveling northwardly on a paved highway at a speed of 50 m.p.h. in a 55-mile speed zone. The road was straight. The weather was dry and clear. The collision occurred shortly after 8:00 a.m. The Styles car came from a filling station on the east side of the highway. Plaintiff saw the Styles car start to move. “It was moving out towards the road very, very slowly.” She advised her husband to blow the horn. He did so.

There was a bag of candy on the seat between plaintiff and her husband. He and she were eating from the bag when she observed *358the Styles car. Her husband continued to eat therefrom. Skid marks showed defendant Nantz applied his brakes 65 to 70 feet prior to the collision. There was no evidence to show the Styles car had entered the highway prior to that time nor was there evidence to show that a prudent driver should have anticipated that Styles would enter the highway in violation of G.S. 20-156 (a).

Plaintiff’s evidence fails to establish her allegations of negligence. Garner v. Pittman, 237 N.C. 328, 75 S.E. 2d 111.

Affirmed.