#### ESTELLE C. DAVIS, Administratrix of the Estate of DEBORAH DENISE DAVIS, Deceased v. JOEL DEE PARNELL.

(Filed 20 November 1963.)

1. Trial § 21—

On motion .to nonsuit, tbe evidence must >be considered in tibe light most favorable to plaintiff, -giving her the benefit of all reasonable inferences of which it may be susceptible.

2. Automobiles § 41m—

In an add-on to recover for the -death of a five year old child, fatally injured when struck by an automobile idr-iven by -defendant at night as the child was crossing .the street at an angle -in the same general direction -as defendant was- driving, nonsuit i-s erroneously allowed when there is ■testimony of a witness permitting the inference that defendant overtook and passed the witness as the witness was traveling at the maximum lawful speed -of 35 miles per hour for that zone.

Appeal by plaintiff from Parker, J., April, 1963 Civil Session, New Hanovee Superior Court.

The plaintiff Administratrix of Deborah Denise Davis instituted tihis .action to- recover under the wrongful -death statute, -alleging the death of ¡her intestate, age 5, p-roximately resulted from the defendant’s actionable negligence.

The defendant admitted fatally injuring the plaintiff’s intestate as she -attempted to 'cross his traffic lane, -but denied he was negligent in any particular. lie alleged, ¡however, the parents of the child, who *523would benefit by recovery for her death, were contributorily negligent in that .they permitted her to be on the street at night unattended.

At the close of plaintiff’© evidence, judgment of compulsory non-suit was entered from which the plaintiff appealed.

Aaron Goldberg for plaintiff appellant.

W. (?.. Smith for defendant appellee.

Higgins, J.

The court entered judgment of nonsuit and dismissed the action on tihe.ground the plaintiff’s evidence was insufficient to permit any reasonable inference her intestate’s death resulted from defendant’s actionable negligence. This appeal challenge© the correctness of that judgment. On the question presented, the plaintiff is entitled to have the evidence considered in the light moist favorable to her, giving her the benefit of all reasonable inference© of which it may -be susceptible. Griffin v. Blakenship, 248 N.C. 81, 102 S.E. 2d 451; Hughes v. Thayer, 229 N.C. 773, 51 S.E. 2d 488.

The fatal 'accident occurred on Dawson, “one of the busiest arterial streets in the City of Wilmington.” The street surface was divided into four traffic lanes, each 11 feet in width. The two north lanes were marked for west-bound travel — the two south lane© for travel east. A yellow line in the center separated the two north from the two south lanes.

Mr. Johnson, the only eyewitness examined, testified that he was driving east with -lights on at a speed of about 35 miles per hour. After passing through the Thirteenth Street intersection he saw two children crossing to the south side of Dawson, about 60 to 75 feet in front. Bellied them -and about 10 feet beyond, also crossing in the same direction, was the plaintiff’© intestate, age five. These children were all isouth of the yellow line. They were 'crossing -at an angle toward the east — ¡the direction tihe witness and the defendant were driving. Upon seeing tihe children, certainly tihe two i-n front, tihe witness applied his brakes and ¡stopped. The plaintiff’© intestate wa© in tihe middle of the street, crossing 'also at an angle. “I heard brakes squealing, and I saw the lights of the oar' coming. It (defendant’s vehicle) hit the child from the rear and knocked it up the street, over and over, about 30 feat from tihe impact. . . . There "were no cars in front of Mr. Parnell traveling .enistrwarddy at the time of the accident.” In answer to a question, Mr. Johnson testified Parnell’© car was driven “at a high rate of ©peed.” The evidence wais ordered stricken -by the court. Whereupon the court excused the jury and Mr. Johnson testified before the judge: “I wats traveling at 35 miles an hour.” He observed the defendant’s *524vehicle for about 40 feat. “I have an opinion satisfactory to myself as to the rate of speed the ear was making; that opinion, is at least 45 to 50 miles an hour.” The record does mot disclose any abjection either to the question or to the answer.

After the jury was recalled, no reference -was made to the evidence taken in its absence. Tlhe defendant’® motion for nonsuit was 'allowed and judgment entered accordingly.

We are not able to determine, nor do we find it necessary to do so, whether the court on the rnation: to nonsuit took into account the evidence which it heard in the absence of the jury. However that may be, we think there is evidence sufficient otherwise to permit 'an ¿inference of excessive speed on the part of the defendant and of his failure to see the little children in the street in time to have avoided running over the plaintiff’s intestate. According to the evidence of the witness Johnson, he was driving at 35 miles peer 'hour, admittedly the legal maximum, at the time he saw the 'children. The evidence permite the inference the 'defendant overtook and passed the witness. The court should have submitted the case to the jury. We reach this conclusion on the rule of law which requires us to give plaintiff the benefit of all legitimate inferences that may be drawn from the evidence .and to resolve all discrepancies in her flavor. The jury, however, may not render a verdict for the plaintiff until she has made out her ease 'by the greater weight of the evidence. Hood v. Coach Co., 249 N.C. 534, 107 S.E. 2d 154; Lake v. Express Co., 249 N.C. 410, 106 S.E. 2d 518.

The judgment of nonsuit is

Reversed.