#### REBECCA TARLTON YOST, Administratrix of the Estate of WILLIAM ROBERT YOST, JR., Plaintiff, v. MYRON H. HALL and WILLIAM FRANCIS BROADDUS, Defendants, and THE RETAIL CREDIT COMPANY, Additional Defendant.

(Filed 18 April, 1951.)

1. Automobiles § 8i—

Where a vehicle on a servient highway approaches an intersection at approximately the same time as a vehicle on his right traveling on the dominant highway, the vehicle on the dominant highway has the right of way both under G.S. 20-155 (a) and G.S. 20-158.

2. Automobiles § 18g (5) —

The physical facts at the scene may be more convincing than oral testimony.

3. Automobiles § 18g (1) —

In the absence of evidence to the contrary it will not be assumed that either motorist involved in a collision was operating his vehicle in excess of the legal limit permitted under the circumstances.

4. Automobiles § 8i—

The fact that a motorist on a servient highway reaches an intersection a hairsbreadth ahead of one on the dominant highway does not give him the right of way, but it is his duty to yield the right of way to the motorist on the dominant highway unless such motorist is a sufficient distance from *464the intersection to warrant the assumption that he can cross in safety-before the other vehicle, operated at a reasonable speed, reaches the crossing. G.S. 20-158.

5. Automobiles § 18g (2) —

Where each defendant testifies that his injury in the collision at an intersection produced a state of retrograde amnesia so that neither could say whether he saw the other vehicle involved in the accident, testimony of statements made immediately after the collision by defendant driver in the presence of defendant owner, who was a passenger, that they were in a hurry, that he did not see the railroad track or stop sign, did not remember seeing the other vehicle or the stop sign before the intersection with a dominant highway, *held*for the jury as to whether they amounted to nothing more than a disavowal of memory, the asserted amnesia not applying to such statements.

6. Automobiles § 18g (5) —

Where a motorist is mortally wounded in a collision so that he may not have been in condition to apply his brakes or make any effort to stop his vehicle after the impact, the fact that his vehicle traveled a distance of ninety feet after the collision is a mere circumstance for the consideration of the jury, and does not compel the conclusion that he was traveling at an excessive speed at the time.

7. Automobiles §§ 8i, 18h (2) — Physical evidence held to show negligence in operation of car along servient highway causing collision at intersection.

Intestate was killed at an intersection in a collision between his car, which was traveling a dominant highway, and the automobile owned by one of the defendants and driven by the other, which approached the intersection from intestate’s left along the servient highway, there being appropriate signs along each of the highways before the intersection. Defendants’ car was damaged across its front end and intestate’s car was damaged on its left side. Immediately after the accident defendant driver stated he did not see the stop signs or intestate’s car until the impact. At the trial both defendants testified they were suffering with retrograde amnesia and could not remember anything immediately preceding or at the time of the collision, so that there was no eyewitness testimony as to the accident. *Held:*Considering the evidence in the light most favorable to plaintiff, it warrants an inference that the two automobiles approached the intersection at approximately the same time and that defendants failed to see, or seeing, failed to heed the presence of intestate’s car and yield it the right of way, and therefore the evidence was sufficient to be submitted to the jury on the issue of negligence.

8. Appeal and Error § 39a—

Alleged errors which do not challenge the validity of the trial in respect to the verdict as rendered must be deemed immaterial and harmless.

9. Highways § 8e—

The State Highway and Public Works Commission has authority to designate one highway as the dominant highway at an intersection not*465withstanding that it was built and is maintained in part by Federal funds and forms a link in an interstate system designated as U. S. highways. G.S. 20-158.

10. Automobiles § 18g (1) —

The fact that a party is prevented from testifying as to events relating to the collision because of amnesia resulting from injuries received in the accident raises no presumption that he exercised due care when there is positive evidence of negligence on his part, and in such event the loss of memory should not be considered either in favor or against him.

11. Same—

The presumption that a motorist exercised due care in the absence of evidence to the contrary cannot be used to create a presumption of negligence on the part of the other driver involved in the collision.

12. Automobiles § 18i—

An instruction in general terms on the questions of negligence and proximate cause will not be held for error as failing to apply the law to the facts in evidence when theretofore the court has correctly instructed the jury with particularity as to the acts of negligence relied on, the evidence in support thereof, and the facts necessary to be found by the jury to support an affirmative answer to the issue.

13. Trial § 7—

Comment by counsel in their arguments relating to compensation received by intestate’s widow under the Workmen’s Compensation Act and as to who got the benefit thereof, held cured by the court’s correct categorical instruction that the jury should not consider the matter in determining the issue of damages.

14. Death § 8—

Any error in instructions upon the rule for ascertaining the present cash value of decedent’s life to his dependents or in failing to elaborate upon the rule upon the request of the jury, *held*cured by the subsequent submission of a mathematical formula, to which counsel for both sides agreed, the formula, not appearing of record, being presumed correct and to have fully satisfied the members of the jury.

15. Trial § 7: Death § 8—

Comment by counsel in contrasting the financial condition of the widow of plaintiff’s intestate with counsel’s projected probable earnings of defendants, although highly improper, *held*cured, upon the record in this case, by the court’s instruction that the jury should not consider the circumstances of the parties in determining the issue of damages and should disregard the argument, and should take the law from the court.

Appeal by defendants from *Gwyn, J.,*October Term, 1950, RowaN.

No error.

Civil action to recover compensation for wrongful death and for damages to an automobile in which defendants plead counterclaims.

*466On the afternoon of 18 March 1949, plaintiff’s intestate was traveling in a northwesterly direction on U. S. Highway 52, going from Hamlet to Salisbury. Defendants Hall and Broaddus, together with their wives, were traveling in a northeasterly direction on Highway 49, going from Charlotte to Raleigh. The automobile they were using belonged to Hall and was being operated by Broaddus. Highway 52 extends in a northwesterly and southeasterly, and Highway 49, in a northeasterly and southwesterly direction. The two highways intersect at approximately ■ right angles at a point in Stanly County. On Highway 49 west of the intersection there are a number of warning signs, including a “Slow Dangerous INTERSECTION,” “Junction,” “Highway 52,” and a “Through Traffic — Stop” sign. Similar signs, other than a “Through Traffic — Stop” sign, were along Highway 52 to the south of the intersection.

The two cars collided in the intersection, each car at the time being on its right-hand side of the road. The Yost car was damaged on its left side from the door to the bumper. It proceeded across Highway 49 for a distance of ninety feet and stopped at or near the road ditch. Yost was in a dazed condition and died the next morning. The Hall car was damaged across its front end. It traveled on across Highway 52 a distance of 42 feet. When found, it was on its right side. The top was badly damaged and its right side was practically demolished. Just how far it traveled on its side is not made clear. -All the occupants of the Hall car were injured.

The plaintiff’s intestate was employed by the Retail Credit Company. In their answers each individual defendant pleads a counterclaim against plaintiff’s intestate and his employer for damages on account of injuries sustained by him. On their motion the Credit Company was made a party defendant.

There were no eyewitnesses to the wreck other than the occupants of the two cars. Each defendant testified that the injuries he received produced retrograde amnesia, and he could not recall anything immediately preceding or at the time of the collision. The wife of neither defendant was present.

The court below submitted ten issues to the jury. The first three— negligence, contributory negligence, and damages — were directed to plaintiff’s cause of action. The remaining six were directed to the two cross actions or counterclaims. The jury answered the first three issues in favor of plaintiff *and*returned same as their verdict. From judgment on the verdict the individual defendants — hereafter referred to as defendants — excepted and appealed.

*467*Linn ■& Shuford for plaintiff appellee.*

*Deal & Hutchins, Graige & Craige, and Smith, Sapp, Moore & Smith for defendant appellants, Myron H. Hall and William Francis Broaddus.*

*G. II. Gover for additional defendant appellee, The Retail Credit Company.*

BarNhill, J.

Tbe absence of direct testimony in respect to tbe circumstances surrounding tbe collision is provocative of mucb speculation as to just wbat did happen. Sucb speculation might well generate contradictory surmises. But we are interested only in the fact situation disclosed by sucb evidence as tbe parties were able to produce.

If tbe two automobiles approached tbe intersection at approximately tbe same time, then it was tbe duty of tbe defendants to yield tbe right of way to Yost. This, for two reasons : (1) tbe Yost car was to their right, G.S. 20-155 (a), and (2) they were traveling on tbe servient highway, G.S. 20-158.

There was no eyewitness account of tbe collision. In appraising tbe testimony for tbe purpose of determining whether there is any evidence of negligence on tbe part of tbe defendants, in that they breached this duty, sufficient to warrant tbe submission of tbe cause to a jury, we are driven in large measure — though not altogether — to tbe consideration of tbe physical facts developed by tbe testimony. Even so, physical facts are sometimes more convincing than oral testimony. *Powers v. Sternberg,*213 N.C. 41, 195 S.E. 88.

Tbe court, in tbe absence of proof to tbe contrary, may not assume that either motorist was operating bis vehicle in excess of tbe legal limit permitted under tbe circumstances. We review tbe evidence with that in mind.

Tbe two automobiles collided within tbe intersection. They arrived at tbe same point at tbe same time. Their approach was so timed that both could not proceed in safety. If neither stopped, a collision was inevitable.

The Hall car evidently entered tbe intersection when tbe Yost vehicle was at least four feet away. But tbe fact a motorist on a servient road reaches tbe intersection a bairsbreadtb ahead of one on tbe dominant highway does not give him tbe right to proceed. It is bis duty to stop and yield tbe right of way unless tbe motorist on tbe dominant highway is a sufficient distance from tbe intersection to warrant tbe assumption that be can cross in safety before tbe other vehicle, operated at a reasonable speed, reaches tbe crossing. *S. v. Hill, ante,*61, and cases cited.

Shortly after tbe accident Broaddus, in tbe presence of Hall, made tbe statement that be did not see tbe railroad track or tbe stop sign. They were in a burry. He told tbe officer that be did not remember seeing tbe *468Yost car until be bit it. When asked if be saw the stop sign, be replied: “I won’t say I did nor I won’t say I didn’t; I don’t remember seeing the sign.” While each defendant testified bis injury produced a state of retrograde amnesia and that is the reason they cannot say whether they saw the sign or the Yost car, no such qualification was attached to these statements made shortly after the collision. So then, it was for the jury to say whether the statements amounted to nothing more than a disavowal of memory.

But the defendants insist the fact the Yost automobile continued on for a distance of *ninety*feet after the collision indicates that Yost was traveling at an excessive speed at the time. Standing alone and unqualified by any other circumstance, this fact might compel, or at least permit, that inference. This we need not now decide, for it appears that Yost was in a dazed or unconscious condition, was mortally wounded, and died in less than twenty hours after the collision. It may well be he was in no condition to apply his brakes or make any other effort to stop his vehicle. The distance he traveled after the collision, under the circumstances here disclosed, was for the consideration of the jury. *Bailey v. Michael,*231 N.C. 404, 57 S.E. 2d 372.

The evidence, considered in the light most favorable to plaintiff, clearly warrants the inference that the two automobiles approached the intersection at approximately the same time, and defendants failed to see, or seeing, failed to heed the presence of Yost approaching the intersection on the dominant road. *Reeves v. Staley,*220 N.C. 573, 18 S.E. 2d 239.

The jury’s verdict on the first three issues is determinative. Any exceptions or assignments of error relied on by defendants which do not challenge the validity of the trial in respect to the verdict as rendered may be by-passed. Even if they point out error in the trial, the error must be deemed immaterial and harmless. *Winborne v. Lloyd,*209 N.C. 483, 183 S.E. 756; *Randle v. Grady,*228 N.C. 159, 45 S.E. 2d 35; *In re Will of Kestler,*228 N.C. 215, 44 S.E. 2d 867; *Coach Co. v. Motor Lines,*229 N.C. 650, 50 S.E. 2d 909; *Call v. Stroud,*232 N.C. 478, 61 S.E. 2d 342.

Certain of our highways are built and maintained in part out of funds contributed by the Federal government. They form links in an interstate system and are designated as U. S. highways. They are, nonetheless, State highways under the supervision and control of the State Highway and Public Works Commission. G.S. 20-158 is applicable to these just as it is to other State highways. The contention that Highway 52 was not a dominant or through highway for want of authority in the State Commission to so designate it is without validity.

When a person survives an accident but is unable to testify concerning the events leading to the accident, by reason of the loss of memory result*469ing from injuries be sustained in tbe accident, it will be presumed, in tbe absence of evidence to tbe contrary, tbat be exercised due care. Anno. 141 A.L.R. 872. Tbe defendants seek to invoke tbis rule and assert tbat tbe court’s charge in respect thereto deprives them of tbe benefit thereof. In tbis we cannot concur.

Presumptions of tbis type are created to fill a complete hiatus in tbe testimony. They are “bats of tbe law, flitting in tbe twilight but disappearing in tbe sunshine of actual facts.” *Mockowik v. Railroad,*196 Mo. 550. If there is any evidence to tbe contrary, tbe presumption fades out of tbe picture. It cannot be accorded evidential value or probative force, or be weighed against tbe evidence offered. *In re Will of Wall,*223 N.C. 591, 27 S.E. 2d 728.

Tbe rule has no application here for tbe reason there is evidence of negligence on tbe part of defendants to be considered by tbe jury. On tbis record tbe loss of memory, if it be a fact — and tbat was for the jury to decide — should not be considered either in favor of or against tbe defendants on tbe issue of negligence.

In considering tbis rule it is well to note tbat tbe absence of evidence of negligence on tbe part of one of tbe parties involved in a collision cannot be used to create a presumption of negligence on tbe part of tbe other.

In concluding its charge on tbe first issue, tbe court instructed tbe jury as follows:

“Upon tbe evidence you are instructed tbat if tbe plaintiff has satisfied you from tbe evidence and by tbe-greater weight thereof tbat tbe defendants, in tbe operation of their automobile were negligent, tbat is, tbe defendants Hall and' Broaddus, and has further satisfied you from tbe evidence and by tbe greater weight thereof tbat such negligence was tbe proximate cause of injury and death of tbe plaintiff’s intestate and injury to bis property,' then it would be your duty to answer tbat issue yes. If tbe plaintiff has failed to so satisfy you, it will be your duty to answer tbat issue no.” '

Tbis instruction is in general terms and is defective in tbat it fails to point out tbe particular acts of negligence alleged upon which plaintiff must rely, and does not state tbe facts, supported by evidence, which, if found to be true, would constitute negligence on tbe part of tbe defendants. Standing alone, it might be'beld for error in tbis respect. *Chambers v. Allen, ante,*195. A consideration of tbe charge as a whole, however, leads to tbe conclusion tbe court below pointed out with sufficient particularity tbe acts of negligence relied on, tbe evidence in support thereof, and tbe facts necessary to be found by tbe jury to support an affirmative answer to tbe first issue. When it instructed tbe jury “tbat if tbe plaintiff has satisfied you . . . tbat tbe defendants, in tbe operation *470of their automobile were negligent . . .,” they, as intelligent men, considering what the court had theretofore said, must have understood that the court meant “negligent in the manner alleged and as heretofore particularized by the court.”

For the purpose of establishing the employer-employee relation existing between the additional defendant, Retail Credit Company, and Yost, defendants offered evidence tending to show that the credit company was paying or had paid compensation to plaintiff under the Workmen’s Compensation Act. Plaintiff, in rebuttal, testified that she understood the law under which she would have to reimburse the credit company out of any recovery she might obtain. There was some comment in the argument on this evidence. In respect thereto the court, in charging the jury on the third issue, instructed it as follows:

“Now, gentlemen, in this connection, before I give you that rule, I want to give you a further caution. The evidence which has been offered and talked about with relation to compensation and what becomes of it, who gets it or who doesn’t, if your verdict as to damages should in anywise be affected by that evidence, then this trial would not represent justice, that would be a mistake.

“Now if there is any question in the mind of any juror as to whether you can follow the instructions which I shall presently give you as to the measure of damages, the yardstick that you have to apply to this evidence, — if there is any question in your mind as to this evidence as to compensation, if you will suggest it now I will withdraw a juror and we will try the case over and we won’t have any further trial. I want that assurance.”

In this the court was careful to caution the jury that any evidence regarding the payment to and receipt by plaintiff of compensation under the Workmen’s Compensation Act was not to be considered by them on the issue of damages. The statement was correct. The caution was timely. It is as favorable to'the defendants as to the plaintiff. Certainly, defendants were not entitled to any credit for the amounts so paid. That being true, the evidence had no bearing on the issue of damages.

In instructing the jury on the third issue, the court gave the correct rule on measure of damages to be applied in wrongful death cases. After the jury had been out for some time, it returned to the courtroom and the foreman stated to the court: “We would like for you to explain the yardstick for measuring damages.” Thereupon the court again gave the correct rule. The foreman then stated: “What we want to know is how to determine the cash value.” In answer thereto the court explained the rule in the language of our decisions. The foreman, apparently still uncertain that the jury understood the rule as stated, said: “How are we to determine the present cash value of that worth?” To this the court *471replied: “The formula which I have given yon is the rule laid down by the Supreme Court, and I doubt that I should undertake to elaborate upon it further.” The jury retired.

“The court then recalled the jury and gave a mathematical rule for the computation of present cash value which was agreed to by counsel for all parties.”

If there was any error in the instruction on damages respecting the rule for ascertaining the present cash value of the net amount the jury should find the deceased would have earned but for his untimely death, or in declining to elaborate further on the rule, it was rendered harmless by the action of counsel in submitting, or having the court submit, a mathematical rule to which they agreed. Just what that rule was, the record does not disclose. We must presume that it was correct and that it answered the question of the foreman to the satisfaction of the members of the jury.

This brings us to the most troublesome exception in the record. During his argument to the jury, Mr. Shuford, of counsel for plaintiff, drew a diagram on the blackboard for the purpose of showing that during the next five years defendants may earn some $75,000, and compared that to the situation of the widow. On objection and motion for new trial, the court cautioned the jury that the financial situation of defendants, so far as capacity to respond in damages is concerned, was not a matter for the jury to consider; that it should disregard the argument and render its verdict under the instructions of the court without regard to the comparative positions of the parties or the capacity of the defendants to earn money, and that the argument was improper and should be erased from their minds.

Again, later, after some further discussion of arguments made by counsel, the court instructed the jury:

“Gentlemen of the jury, any pitiable situation in which the widow may find herself and any pitiable situation which the minor child may be found is not a circumstance to affect in the least your verdict in this ease. The Court will give you the scale that will be necessary for you to use in measuring any damage which may be recovered. The Court will give you the formula to apply if and when you come to apply the rule, and the Court will ask you to abide the rules as they are given and as they are announced by the Court. It is proper, gentlemen, for lawyers for all parties to argue their cases and to tell you what their conception of the law is, but in the final analysis it is the duty of the Court to tell you what the law is, and when the Court tells you what the law is and what the rules are, it is your duty under oath, gentlemen, to follow just those rules. If there is any question whether the jury can do that, I will withdraw a juror and direct a mistrial now.”

*472Tbe argument made by counsel exceeded tbe bounds of propriety. It constituted sucb an appeal to tbe sympathy of tbe jury as to warrant a new trial unless its prejudicial effect was fully effaced by tbe court. For tbat reason, we bave weighed tbe question at some length. Tbe deceased was a young man, robust and active. He was a highly satisfactory employee. His life expectancy, bis ability, and bis earning capacity warranted a finding tbat tbe present cash value of bis prospective net income was substantial. Under all tbe circumstances, we are unprepared to say tbat tbe recovery may be considered excessive or above tbat to be expected under tbe evidence offered. .It would seem, therefore, tbat tbe caution of tbe careful and painstaking judge who presided at tbe trial served to remove from tbe minds of tbe jurors any prejudicial impression aroused by tbe argument.

*We*bave carefully examined the other exceptive assignments of error to which we bave not specifically referred. They fail, either severally or in combination, to disclose any sufficient cause for disturbing tbe verdict.

In tbe trial we find

No error.