#### JEREMIAH EDGAR DEZERN v. ASHEBORO CITY BOARD OF EDUCATION, ERNEST ISLEY, and JOHN N. OGBURN, JR., Guardian Ad Litem for ERNEST ISLEY.

(Filed 20 November 1963.)

1. Automobiles § 9—

It is negligence to permit a disabled bus to stand on a highway at night without lights, blocking a lame of traffic, without giving warning to approaching vehicles. GjS. 20-129, G.S. 20-134.

2. Automobiles § 10—

Where a motorist is traveling within the maximum legal speed he will not be held contributorily ¡negligent as a matter of law in colliding with the rear of a vehicle left in his lane of traffic at 'nighttime without lights.

Appeal by defendants from McConnell, J., February 1963 Civil Session of RaNdolph.

J. Harvey Luck and Miller ■& Beck for plaintiff.

Jordan, Wright, Henson & Nichols and G. Marlin Evans for defendants.

Per Curiam.

This action was instituted by plaintiff to- recover for personal injuries and property damage which resulted when his automobile -collided with the rear of a school activities bus.

Verdict was favorable to plaintiff. The defendant Board of Education 'Carried liability insurance covering the bus and thereby waived governmental immunity from liability .to the extent of the insurance policy limits. G.S. 115-53. The amount of the judgment is within policy limits.

Defendants appeal -and -assign as error the denial of their motion for nonsuit.

The 'evidence, taken' in the light most favorable to plaintiff, is summarized as follows:

Defendant Isley, ¡agent of defendant Board of Education, was operating the bus (with one ¡passenger aboard) westwardly -on U. S. Highway 64, a few -miles east of Asbeboro, N. C., on the night of 2 February 1961. He wais having “ignition” trouble. The motor cut off ■at Woody’s Drive-In. Mey got the motor started and after he had driven about one-half mile in the direction of Asbeboro the motor’ cut off again and the lights on the bus went out. The bus was left standing in the north lane facing west, without lights. It was 8 feet wide and 12 feet high, and obstructed practically the entire lane. It was painted yellow. The highway is 23 or 24 feet wide. Isley and the passenger left *536the bus and wenrfc to a nearby house to- telephone for help. They reten-ed to the bus and' .attempted to push it. Before they could move it, the plaintiff mn into the rear of the bus. No one attempted to flag traffic or give warning of .any kind. The ibus 'had been standing in this position about 25 minutes. The highway was level and dry; the weather was cloudy and there was fog; the night was dark. The collision occurred about 6:45 P.M. When plaintiff, driving westwardly, was about 200 yards from -the bus, and before he knew of its presence, he saw approaching a line of east-bound traffic, consisting of 8 to 10 oars. Plaintiff’s speed was 35 miles per hour; the line of traffic was moving about 40 to 45 miles per hour. The speed limit was 55 miles per ‘hour. The first oar in the line .dimmed lights and plaintiff did likewise. Some of the meeting cars 'did not dim their lights. Being somewhat blinded by the lights, plaintiff watched the edge of the hardteurface, the outline of which was .clear, to guage hie direction. Plaintiff reduced ¡speed and at the time of the collision was going 20 to 30 mites p>er hour. When he passed one of the oars with bright lights, he, for the first time, saw the bus in his lane of travel. It was 20 to 25 feet away. lie did not have time to ¡apply brakes, though he attempted to do ¡so. He did not turn to the left because of -the east-bound' traffic; the shoulder of the road was only 3 feet wide and too narrow for passage. Plaintiff was seriously injured' and his automobile was extensively damaged.

Defendants were negligent in permitting the bus ,to stand .on the highway at night, without lights, blocking.the- lane of traffic, and in failing to give warning to ¡approaching vehicles. G.S. 20-129 and 134; Scarborough v. Ingram, 256 N.C. 87, 122 S.E. 2d 798. Plaintiff was not exceeding the ¡speed limit (55 miles per hour), his vision was impaired Iby blinding lights and. fog. Under -the provisions of G.S. 20-141 (e) and our decisions the plaintiff was mot contributorily negligent .as a matter of law; it was a case for the jury. Brooks v. Honeycutt, 250 N.C. 179, 108 S.E. 2d 457; Wilson v. Webster, 247 N.C. 393, 100 S.E. 2d 829; Burchette v. Distributing Co., 243 N.C. 120, 90 S.E. 2d 232; Chaffin v. Brame, 233 N.C. 377, 64 S.E. 2d 276. Issues as to negligence of defendants, ¡contributory negligence of plaintiff, and damages were submitted to the jury. AH were answered in favor of plaintiff.

No error.