#### ROBERT S. BENSON v. WALTER F. SAWYER.

(Filed 10 October 1962.)

Automobiles § 41k—

Evidence tending to show that plaintiff bad opened tbe door to a parked vehicle to speak to bis estranged wife’s sister, wbo was sitting on tbe front seat as a passenger, that defendant got into tbe driver’s seat, backed tbe car suddenly and rapidly so that plaintiff did not bave time to step aside, and was struck by tbe open door and drug to bis injury, and that defendant then drove forward and left tbe scene, is held sufficient to be submitted to tbe jury on tbe issue of negligence and not to show contributory negligence as a matter of law, there being no evidence of any menace by plaintiff by word or demeanor.

*766Appeal by plaintiff from Cowper, J., March 1962 Civil Term of New HANOVER.

Action to recover for personal injuries suffered by plaintiff by reason of the alleged negligence of defendant.

From judgment of involuntary nonsuit, plaintiff appeals.

Solomon B. Sternberger and Addison Hewlitt, Jr., for plaintiff.

Poisson, Marshall, Barnhill & Williams for defendant.

Per Curiam.

The case was nonsuited at the close of plaintiff’s evidence. His evidence, considered in the light most favorable to him, tends to show:

Shortly after midnight on 17 October 1960 plaintiff parked his truck in the parking area in front of the Oleander Fruit stand in a suburban district of New Hanover County. Plaintiff entered the Fruit Stand, which was open for business, and remained there about 30 minutes. When he came out he saw his wife’s sister-in-law, Mary Fender, sitting in a Cadillac automobile parked near his truck. She was sitting in the right front seat of the Cadillac. About this time defendant got in the Cadillac on the driver’s side. Plaintiff called Mary’s name loudly, and opened the right front door of the Cadillac to speak to her. She and her husband were estranged. Plaintiff’s manner was not menacing, and he was not cursing. Defendant started the motor. Plaintiff was standing behind the open door. Defendant began backing the Cadillac “real fast.” Plaintiff didn’t have time to step aside, and was knocked down and was dragged about 30 feet to the edge of the highway. Defendant drove forward and left the scene. Plaintiff was injured.

The complaint narrates the occurrence in substantial accord with the foregoing summary of the evidence, and alleges that plaintiff’s injury was proximately caused by defendant’s negligence consisting inter alia of reckless driving in violation of G.S. 20-140, excessive speed in violation of G.S. 20-141 (a), failure to keep a reasonable lookout, and failure to keep the automobile under proper control.

Defendant denies that he was negligent, and pleads contributory negligence.

Plaintiff’s evidence makes out a prima facie case of actionable negligence. Adams v. Service Co., 237 N.C. 136, 74 S.E. 2d 332. Contributory negligence does not appear as a matter of law from plaintiff’s evidence.

The judgment below is

Reversed.