#### JOHNNIE CARL FALLS, by and through his Next Friend, PAUL S. FALLS v. JACK ODELL WILLIAMS AND ROOSEVELT TIRE SERVICE, INC.

(Filed 4 March 1964.)

Appeal by plaintiff from Biddle, S. J., September 1963 Session of GASTON.

Johnnie Falls, a seven year old child, was injured 25 May 1961, when he and an automobile, owned by individual defendant, collided in the intersection of Vista Drive and Wayside Place in Gastonia. Williams is employed by corporate defendant. He was at the time of the collision about his employer’s business. Vista Drive runs north and south. It is intersected on the west by Wayside Place. Each street is approximately 20 feet wide.

Just prior to the collision, plaintiff was a passenger on a city bus. It was going north. It stopped adjacent to the east curb of Vista Drive and just north of the intersection of that street with Wayside Place. When the bus stopped, infant plaintiff alighted from the rear. He started across the street from the east to the west side of Vista Drive. He was struck and injured in the intersection by defendant’s car going south.

Plaintiff seeks compensation for his injuries caused, as he alleges, by Williams’ failure to keep his vehicle under control, failure to keep a lookout for pedestrians whose presence he should have anticipated, failure to yield the right of way as required by G.S. 20-173 (a), and excessive speed under the existing conditions.

Defendants denied the collision was the result of any negligent act on the part of Williams but was an unfortunate and unavoidable accident caused by the child running from the rear of the bus directly into the path of defendant’s car. As an additional defense, they pleaded contributory negligence.

Defendants’ motion for nonsuit, at conclusion of plaintiff’s evidence was allowed.

Henry M. Whitesides for plaintiff appellant.

Mullen, Holland & Cooke by James Mullen for defendant appellee Jack Odell Williams.

Hollowell & Stott by Grady B. Stott for defendant appellee Roosevelt Tire Service, Inc.

Per Curiam.

A careful examination of the evidence convinces us the case should have been submitted to the jury on appropriate issues. How the conflicts in the testimony should be resolved is a matter for the jury — not the court. A detailed discussion of the evidence presently be*414fore us is not appropriate. Sprueill v. Hamlet, 260, N.C. 546, 133 S.E. 2d 173.

New trial.