#### WILSON TAYLOR v. E. B. GARRETT COMPANY, INC.

(Filed 11 December 1963.)

Automobiles § 41a-

Allegations that ~Lefendant's truck, s~pproach~mg from the oDpos~Jte direction, suddenily swerved into plaAntiff's lane o~ travel, but wiiitth evidence thet defendant's (truck was moving Slowly behind an `nnlighted truck and that defendant's truck had its ie~t wheel some two to two and on'e-hialf feet (to the left of the centerline of the highway, and that plaintiff ran into the wheel, held to warrant nonsuit for variance.

APPEAL by p1th~iff from Crissman, J., April 15, 1963 Civil Se~si:o~ of G[JILFORD.

P~uin~iff seeks oompemsatioai for peaisonal injuries and p~oiperf~y diam-age s~ia1~ai.ncd whea~ the autornobi1le owned and o~enar~ed by ~iim c'oI-lided w~tih a ~uek-~ts'ai1er owned and operated by defendant neas' Holly HIJJ, S. C., `on 10 May 1959.

A~t ~the ooa~eduision of p1ain~iff's e~videT1ice t,h,e court adlowed defen-danth's motion for noaisnit. Plaintiff appealed.

*673 Everett, Everett & Everett by Robinson 0. Everett for plaintiff appellant.

Jordan, Wright, Henson & Nichols by William, D. Caffrey for defendant appellee.

PeR Cueiam.

To impose liability plaintiff alleged and defendant admitted: Plaintiff was traveling south and defendant’s truck was going north on Highway 15; the collision occurred at night; plaintiff ran into defendant’s truck and as a result of the collision turned over. To hold defendant responsible for the collision, plaintiff alleged and defendant denied: “Just as the plaintiff’s car passed in the opposite direction, the rear portion of the defendant’s truck suddenly and without notice swerved across the center line of the 'highway into the plaintiff’s lane and .collided with the plaintiff’s .car.

> “Because it was night time and because he bad no notice that the defendant’s truck or any part thereof would move across the center lane and move into the southbound lane of Highway 15, the plaintiff, who was driving ¡his car at 'the time, and who wais driving carefully and prudently and in the southbound lane, had no opportunity to avoid the collision.”

As an additional defense defendant 'alleged .contributory negligence of plaintiff In that ihe operated his vehicle at an unlawful rate of speed and on the wrong side of the road.

Plaintiff testified the collision occurred on a two-lane concrete road 27 to 30 feet wide; the center of the road was marked by a yellow line; the terrain was fiat; the collision occurred just ais plaintiff was entering u slight curve to his right; he was (traveling 50 na.p.h.; as he entered the curve, he had bis bright lights on; he saw some 25 to 35 feet (or 50 to 60 feet as he later testified) ahead o,f him an unlighted truck-trailer in the northbound lane; it was either ©topped or moving very slowly; he did not collide with that vehicle but collided with defendant’s .truck which was behind but very close to -the unlighted -truck; ■the ¡headlights were Ibuming on defendant’s track .but could only be seen under .the unlighted truck, causing plaintiff to ¡think the unlighted track was on fire; the left rear wheel o.f defendant’s truck was some two to two and one-half feet across the center line of the road; plaintiff ran into the wheel of the truck Which was on the wrong ¡side of the ro'ad; this caused him -to. lose control and his vehicle to turn over.

Defendant fon.ciby .argues the evidence offered by plaintiff (defendant offered none) establishes .contributory negligence as a matter of law. We do not find it necessary to. decide that- question. Plaintiff, if he is to recover, must do so by proving the allegations of (his com*674plaint. There he alleges ia sudden swerving oí defendant's truck into his line of travel, a sudden emergency. He offers no evidence to establish that fact, :but .does testify to other facts which, under the South Carolina statutes, might constitute negligence.

The .court, because of plaintiff’s failure to establish defendant’s negligence as alleged, properly allowed tire motion for nonsuit. Hall v. Poteat, 257 N.C. 458, 125 S.E. 2d 924.

Affirmed.