#### QUEEN CITY COACH COMPANY v. CLYDE LEE and BERRY B. FREEMAN, Administrator of the Estate of ANDREW FREEMAN, Deceased.

(Filed 30 October, 1940.)

1. Trial § 23b—

Upon motion to nonsuit, the evidence tending to establish the cause of action is to be considered in the light most favorable to the party asserting the cause of action, and he is entitled to every reasonable intendment thereon and every reasonable inference therefrom. C. S., 567.

*3212. Trial § 19—

The competency, admissibility and sufficiency of tbe evidence is for the court; its weight and credibility is for the jury.

3. Trial § 22b—

Only the evidence in support of the cause of the action will be considered upon motion to nonsuit.

4. Automobiles §§ 10, 18a — Conflicting evidence as to whether vehicle was being operated on right side of highway held to take case to jury.

This action grew out of a collision between a bus and an automobile traveling in opposite directions on the highway. The collision was caused by the fact that one or the other of the vehicles was over the center line to its left of the highway. There was testimony to the effect that immediately after the accident there was a line of oil which began on the highway at the place of the collision and ran directly to the bus, and that said line of oil was over the center line about 18 inches on the bus’ left side of the highway and ran on the bus’ left-hand side of the highway a distance of about 35 steps, and testimony of another witness that at the time of the collision the bus was over the center line to its left side of the highway. The evidence of defendant bus company tended to show that the bus remained on its right side of the highway. *Held:*Upon the bus company’s motion to nonsuit its evidence must be disregarded, and the evidence that the left wheels of the bus were over the center line of the highway is sufficient to take the case to the jury, the weight and credibility of the evidence being for its determination.

5. Automobiles § 18h: Trial § 32 — It is not error to refuse to give requested instructions which are not predicated on the jury’s finding of the essential facts by the greater weight of evidence.

The accident in suit was caused by the fact that one or the other of the vehicles involved was over the center line of the highway. Plaintiff requested an instruction that if the jury should find that the collision occurred on plaintiff’s right of the center of the highway, or that if the automobile ran to its left into the path of plaintiff’s bus at a time when the bus was on its right side of the center of the highway, to answer the issues in favor of plaintiff on defendant’s counterclaim. *Held:*The refusal to give the instructions requested was not error, since they were not predicated upon the jury’s finding of the facts from the greater weight of the evidence, and made no reference to the burden of proof, which constitutes a substantial right.

6. Same—

Plaintiff requested instruction as to the right of a motorist to assume that a vehicle approaching from the opposite direction will stay on its right side of the highway *held*substantially given in the charge.

7. Death § 8 — Charge ou issue of damages for wrongful death held without error.

The evidence disclosed that intestate was a young man 18 years of age, of sober and industrious habits, that at the time of his death he was a newspaper photographer of skill and ability. The court correctly instructed the jury as to the method of ascertaining the present net worth of deceased to his family. *Held:*The refusal of a requested instruction that since the administrator had not shown the amount of any earnings *322on the part of the intestate, the jury should not speculate as to what his earnings had been, is not error.

8. Evidence § 30—

In this action for wrongful death the admission in evidence of the photograph of intestate for the purpose of corroborating the witnesses, *is held,*not error.

9. Automobiles § 18f—

Testimony of a witness as to speed of plaintiff’s bus when it passed the witness’ car on the highway immediately before the collision in suit *is held*competent as some evidence of the speed of the bus at the time of the collision, the probative force being for the jury.

10. Evidence § 42b — ■

The test of whether testimony of a declaration is competent as being a part of the *res gestee*depends upon the spontaneity of the declaration, it being required that the declaration be the facts talking through de-clarant rather than the declarant talking about the facts, and the element of contemporaneousness being important merely as bearing on the question of spontaneity.

11. Evidence § 18 — Declaration held competent for purpose of corroborating ox* impeaching testimony of declarant.

Plaintiff’s bus driver testified that he went to the car involved in the collision with plaintiff’s bus and saw ‘-‘this boy in the car and he was not making any noise.” Defendants’ witness testified that about 15 minutes after the accident the bus driver made a declaration to the effect that he thought he had killed a man down the road. The court admitted the testimony of the declaration, not as substantive evidence, but solely for the purpose of contradicting or corroborating the testimony of plaintiff’s driver. *Meld:*Plaintiff’s objection thereto cannot be sustained.

Barnhill, X, concurring in result.

Stacy, C. X, and Winborne, X, join in concurring opinion.

Appeal by plaintiff from *Ervin, Special Judge,*and a jury, at April Term, 1940, of Rutherford.

No error.

This is an action for actionable negligence, brought by plaintiff against Clyde Lee and Berry B. Freeman, administrator of the estate of Andrew Freeman, deceased, to recover the sum of $250.00 for alleged damage to plaintiff’s bus. The defendant Clyde Lee, who owned the automobile involved in the wreck, denied negligence and set up a counterclaim for $250.00 damage to his car. Plaintiff in reply denied the allegations of Clyde Lee. Berry B. Freeman, the administrator of the estate of Andrew Freeman, denied negligence and set up a counterclaim against plaintiff for the sum of $100,000 for negligence in killing Andrew Freeman. The plaintiff denied negligence and set up the plea of contributory negligence.

The issues and verdict are as follows:

*“1.*Was the bus of the plaintiff, the Queen City Coach Company, *323damaged by tbe negligence of the intestate, Andrew Freeman, as alleged in the complaint? Ans.: ‘No.’

“2. What damages, if any, is the plaintiff, the Queen City Coach Company, entitled to recover of the defendants Clyde Lee and Berry B. Freeman, administrator of Andrew Freeman, upon the cause of action stated in the complaint? Ans.: ‘None.’

“3. Was the automobile of the defendant Clyde Lee damaged by the negligence of the driver of the bus of the plaintiff Queen City Coach Company, as alleged in the said counterclaim? Ans.: ‘Yes.’

“4. Was the intestate Andrew Freeman killed by the negligence of the driver of the plaintiff Queen City Coach Company, as alleged in the counterclaim of the defendant Berry B. Freeman, administrator of said intestate ? Ans.: ‘Yes.’

“5. Did the intestate Andrew Freeman, by his own negligence, contribute to the injuries whereof the defendants complain in their counterclaim? Ans.: ‘No.’

“6. What damage, if any, is the defendant Clyde Lee entitled to recover of the plaintiff Queen City Coach Company upon said defendant’s counterclaim? Ans.: ‘$70.00.’

“7. What damages, if any, is the defendant Berry B. Freeman, administrator of Andrew Freeman, entitled to recover of the plaintiff Queen City Coach Company upon said defendant’s counterclaim ? Ans.: ‘$15,000.00.’ ”

The court below rendered judgment on the verdict. Plaintiff made numerous exceptions and assignments of error and appealed to the Supreme Court. The material ones and necessary facts will be set forth in the opinion.

*Edwards & Edwards and Robinson & Jones for plaintiff, appellant;*

*Woodroiv W. Jones, Stover P. Eunagan, and R. Marion Ross for defendants, appellees.*

ClaeKsoN, J.

At the close of defendants’ evidence and at the close of all the evidence, the plaintiff made motions for judgment as in case of nonsuit. C. S., 567. The court below refused these motions and in this we can see no error.

On a motion to nonsuit,-the evidence is to be taken in the light most favorable to the plaintiff, and he is entitled to the benefit of every reasonable intendment upon the evidence and every reasonable inference drawn therefrom. The competency, admissibility, and sufficiency of the evidence is a matter for the court to determine. The credibility, probative force, and weight is a matter for the jury. This principle is so well settled we do not think it necessary to cite authorities.

*324Tbe record is voluminous, but tbe facts are simple. Tbe plaintiff’s evidence is discarded, as tbe jury believed tbe evidence of tbe defendants. Tbis evidence is to tbe effect tbat B. T. Mullís, tbe driver of plaintiff’s bus, left Asbeville, N. C., at 6:55 o’clock p.m., on bis run to Charlotte, N. C. He was 25 minutes late, having bad to wait on tbe Knoxville, Tenn., bus. Tbe defendants’ intestate, Andrew Freeman, was driving a 1931 model Ford automobile. Tbe bus was traveling in an eastward direction, tbe Ford was going in a westward direction. Tbe collision occurred about 4 miles north of Shelby, on Thursday, 27 July, 1939, at about 9 :15 p.m. Tbe place where tbe collision occurred was on a curve, tbe bus going uphill and tbe Ford coming downhill. Tbe bus, according to witnesses, was running 55, 60 and 65 miles an hour. It was in evidence tbat tbe Ford was equipped with proper brakes, steering apparatus and all its important parts were in good condition. Tbe car bad oil and gasoline in it. Witnesses who were at tbe wreck 10 or 15 minutes after tbe collision said tbe Ford was torn all to pieces and tbat Andrew Freeman was under tbe floor boards dead. Tbe left wheel was off. Tbe body of tbe car where tbe driver would sit under tbe wheel, or under tbe steering post, was mashed in. Tbe whole left side was all smashed in on tbe car. One witness testified: “In tbe cement near tbis car I saw some scratched places dug out. Tbe car was eight or ten feet from tbe scratched places. At tbe time I saw it tbe Ford car was kind of crossways of tbe road, a little more so back towards Shelby than toward Rutherfordton. I examined tbe bus some. It was off tbe bard surface. Tbe front of tbe car was beaded sort of across tbe road, a sort of an angle more toward Shelby than Forest City. There was an embankment near where tbe Ford car was. I would say tbe embankment was four feet high. Tbe Ford car was up on tbe bank. Tbe right rear wheel was bind of dug out, sitting in tbe bank. *About 12 to 18 inches from the scratches were little oil martes, and there was a stream right up the highway I guess 60 or 70 feet. Commencing at where the scratches appear, I observed an oil marie, leading toward Shelby.*Tbe bus was over on tbe right-band side, over beyond these marks. I did not measure it but *it loolced to me Ulce this oil mark was 18 or 20 inches from the north side of the black line, or on the Freeman side of the road.”*Another witness testified: “Where tbe cement was torn up, leading in tbe direction of tbe bus, a black mark started about 10 inches to tbe south of tbe bole in tbe pavement and about 6 inches south of tbe bole in tbe pavement there was another black mark. Tbe small black mark was oil and tbe center one bad been scraped with metal. Tbat black line was *11¡., 16 or 18 inches north of the center line of the highway.*I followed tbat black line to tbe bus. Going in tbe direction of where tbe bus was located, *that black line continued on the north side of the center mark*
      *325
      *88 steps.*I stepped it. Then it crossed tbe black line and this fresh scratched mark, then crossed the center line; it didn’t make much of a curve and did not have to as the road was turned. They went practically straight. I followed that to the bus. The mark I have described followed continuously from the place where the hole was dug out to the bus. The steel mark was plain. When it got to the dirt, the steel mark plowed in the dirt 3 or 4 inches and the oil line was right along with it. The left front spindle on the bus was broken off and the left-hand front wheel back a little, and the left front axle was down in the dirt. It was plowing all the way along and when it run into this gulley it went deep into the bank.” Numerous witnesses testified to like effect as the above. The center of the highway had a black line to guide traffic. The defendants’ contention was that the bus going up hill on a curve at a rapid rate swerved to the left, crossed the black line and struck the left wheel of the Ford coming down. The bus weighed 12,000 pounds and the Ford 3,350 pounds.

Clarence Greer testified, in part: “On or about July 27, 1939, about 9 :00 or 9 :15, three or four miles west of Shelby, I observed a collision between a Queen City Coach Company bus and a Ford automobile. The bus was traveling toward Charlotte and Shelby and the Ford was coming this way. They collided on a kind of curve, on the bend of the curve. I was behind the bus about as far as from here to those gentlemen sitting there. The bus had passed me some time prior to that. Brice Mullís was driving the bus. I have known him for about a year. I was driving a 1932 model Pontiac coupe. A lady friend, Oma Ledbetter, was with me. She is in Sweetwater, Tennessee, now. At the time I saw the bus and the Ford collide, the bus was over the black line around a foot or two feet. On that curve the bus was making fifty miles an hour, and starting down hill he came by me I would say anywhere from the neighborhood of fifty-five, sixty or sixty-five miles an hour. From my position on the curve I could see the oncoming car. At the time of the collision the Ford was on the northerly side of the road. After the bus passed me, it had to gain on me.”

Plaintiff’s evidence was in conflict with the defendants’, and the evidence in the record showed Greer to be a disreputable man. The plaintiff’s evidence on appeal is eliminated as the defendants’ evidence only is considered. The questions as to the weight, probative force and credibility was for the jury to determine, not for us.

The plaintiff contends: “From the above, it will be seen that there was only one vital question of fact in the ease: Upon which side of the center line did the collision occur?” The jury has decided against plaintiff’s contentions. The plaintiff requested the following instructions : “At the conclusion of the evidence the plaintiff, in apt time, by *326duly signed and written requests therefor, duly requested the court to charge the jury in part as follows: ‘1. If you find that the collision in question occurred on the right of the center of the highway in the direction in which the plaintiff’s bus was going, you should answer the first issue Yes, the third issue No, and the fourth issue No. 2. If you find as facts from the evidence that as the bus and the automobile were approaching each other, the automobile ran to its left into the path of the bus at a time when the bus was on its right of the center of the highway, you should answer the first issue Yes, and the third issue No, and the fourth issue No.’ ”

These two instructions are so drawn as to peremptorily instruct the jury to find against the defendants and in favor of plaintiff. They do not even suggest that “If the jury should find by the greater weight of the evidence.”

The burden of proof is a substantial right omitted from the requests.

In *Fisher v. Jackson,*216 N. C., 302 (304), *Schench, J.,*for the Court says : “ 'The rule as to the burden of proof is important and indispensable in the administration of justice. It constitutes a substantial right of the party upon whose adversary the burden rests; and, therefore, it should be carefully guarded and rigidly enforced by the courts. *S. v. Falkner,*182 N. C., 798, and cases there cited.’ *Hosiery Co. v. Express Co.,*184 N. C., 478.”

The plaintiff also requested the court to charge: “3. The plaintiff, in the operation of its bus, had a right to assume that the approaching automobile in which Andrew Freeman was riding would stay on its side of the center of the road, and you should bear this instruction in mind in passing upon the first issue and the third issue and the fourth issue.” This was given substantially in the charge as laid down in *Shirley v. Ayers,*201 N. C., 51 (53-54). “4. Upon the seventh issue, as to what damages, if any, Berry B. Freeman, administrator, is entitled to recover, the said administrator has not shown the amount of any earnings on the part of Andrew Freeman, and in the absence of such evidence, you should not speculate as to what his earnings had been.” The plaintiff’s prayers 1, 2 and 3 were refused, except as given in the general charge. The fourth was refused.

The court below charged the rule of the road correctly, under the facts in this case: “The court instructs you that there is a statute in this State which is now in force, and which was in force at the time mentioned in the pleadings, which reads as follows: (O. S., 2621 [293])

• — 'Upon all highways of sufficient width, except upon one-way streets, the driver of a vehicle shall drive the same upon the right half of the highway, and shall drive a slow moving vehicle as closely as possible to the right-hand edge or curb of such highway, unless it is impracticable *327to travel on such side of the highway and except when overtaking and passing another vehicle subject to the limitations applicable in overtaking and passing, set forth in section 2621, subsections 296 and 297.’ ” Under this statute the court below charged, we think, fully as to the rights and duties both of the driver of the bus and of the Ford automobile, and defined proximate cause. In the charge is the following: “As. our Supreme Court has declared in the case of *Stephenson v. Leonard,*208 N. C., 451, the first requisite of proximate cause is the doing or omitting to do an act which a person of ordinary prudence could foresee might naturally or probably produce the injury complained of, and the second requisite is that such an act or omission did cause the injury. In order that a party may be liable for negligence, however, it is not necessary that he should have contemplated or even been able to anticipate the particular consequence or precise form of the injury, or the particular manner in which it occurred, or that it would occur to the particular person. It is sufficient if the injury complained of was the natural and probable consequence of the negligent act or omission, and if it could have been reasonably anticipated by the party sought to be charged with responsibility therefor that injury or harm to another might follow the wrongful act or omission. In other words, the proximate cause of an injury is that cause which, in natural and continuous sequence, unbroken by any new and independent cause, produced the injury and without which the injury would not have occurred, and one from which any person of ordinary prudence could have foreseen that some injury to another was probable under all the facts as they existed.” We think from the entire charge, taken as a whole, the instructions were substantially given.

It is well settled that the prayer of instructions “should be given by the court with substantial conformity to the prayer.” *Groome v. Statesville,*207 N. C., 538 (540).

The fourth prayer for instructions cannot be sustained. It was in evidence that Andrew Freeman was 19 years of age. He was employed prior to his death for 6 months at $40.00 a month. He was employed by Clyde Lee at the time of his death. It was shown by the evidence that the young man had ability and special aptitude for newspaper work. He was a newspaper photographer. He had a high school diploma. He was practical in business, sober and temperate, and his character and habits were good. His physical condition was perfect, except that he was 3 pounds underweight. Other evidence was received in this case without objection on the part of the appellant as to the skill and ability of defendants’ intestate in his photographic work. Under the Mortality Tables offered in evidence, N. C. Code 1939 *328(Michie), sec. 1790, bis expectancy, be being 19 years of age, would be 42.9 years.

Tbe court below charged tbe jury, to wbicb no exceptions were taken: “Tbe amount of damages wbicb may be recovered in cases arising under section 160 of Consolidated Statutes for tbe death of a person caused by tbe wrongful act, neglect or default of another is fixed by section 161 of Consolidated Statutes at 'such damages as are a fair and just compensation for tbe pecuniary injury resulting from such death.’ Tbe measure of damages for wrongful death is tbe present worth of tbe net pecuniary value of tbe life to tbe deceased to be ascertained by deducting tbe probable cost of bis own living and usual and ordinary expenses from tbe probable gross income derived from bis own exertions based upon bis life expectancy. As a basis on wbicb to enable tbe jury to make their estimates, it is competent to show, and for the jury to consider, tbe age, health and expectancy of tbe life of tbe deceased; bis earning capacity, bis habits, bis ability and skill, tbe business in wbicb be was employed and tbe means be bad for making money — tbe end of all of it being to enable tbe jury fairly to determine tbe net income wbicb tbe deceased might reasonably have been expected to earn bad bis death not ensued, and thus arrive at tbe pecuniary ■ worth of tbe deceased to bis estate. Tbe mortality tables embodied in section 1790 of tbe Consolidated Statutes have been called to your attention. Tbe court instructs you that in arriving at tbe life expectancy of tbe defendant’s intestate, you have a right to consider such mortality tables in connection with tbe other evidence in *the*case bearing upon *the*health, constitution and habits of tbe defendant’s intestate, but you are not bound by such mortality tables. It is only tbe present worth of tbe pecuniary injury resulting from tbe wrongful death of tbe deceased that may be awarded to bis administrator. It is not tbe equivalent of human life that is to be given, nor is punishment to be inflicted or anger to be appeased, or sorrow to be assuaged, but only a fair and just compensation for tbe pecuniary injury resulting from tbe death of tbe deceased is to be awarded.” "We think tbe above charge in accordance with tbe authorities in this jurisdiction. *Mendenhall v. R. R., 123*N. C., 275; *Russell v. Steamboat Co.,*126 N. C., 961.

In *Mendenhall v. R. R., supra,*at p. 278, tbe court charged: “Tbe measure of damages is tbe present value of tbe net pecuniary worth of tbe deceased to be ascertained by deducting tbe cost of bis own living and expenditures from tbe gross income, based upon bis life expectancy. As a basis on wbicb to enable tbe jury to make their estimate, it is competent to show, and for them to consider, tbe age of tbe deceased, bis prospects in life, bis habits, bis character, bis industry and skill, tbe means be bad for making money, tbe business in wbicb be was *329employed — the end of it all being to enable the jury to fix upon the net income which might be reasonably expected if death had not ensued, and thus arrive at the pecuniary worth of the deceased to his family.” *Barnes v. Wilson,*217 N. C., 190 (195).

In *Hicks v. Love,*201 N. C., 773 (776-7), the rule is thus stated: “The appellant excepted to evidence offered by the plaintiff that the deceased provided for his family, that he had a comfortable home, a 200-acre farm, and a plenty for his family to eat and wear. In determining the pecuniary advantage to be derived from the continuance of a human life, it is competent for the jury in an action for wrongful death, under C. S., 160, to consider evidence as to the age, habits, industry, skill, means, and business of the deceased. *Burton v. R. R.,*82 N. C., 505; *Carter v. R. R.,*139 N. C., 499; *Carpenter v. Power Co.,*191 N. C., 130. A part of this evidence has reference to the industry of .the deceased and to the business in which he was engaged and is clearly within the scope of the cases just cited; and we see no convincing reason for holding that the result of his toil as manifested in providing for the support of his family should not be considered as evidence of his constant attention to business. Certainly the admission of the evidence is not adequate cause for a new trial. 17 C. J., 1356, see 244 (3).”

The exception and assignment of error which relates to the introduction of the photograph of Andrew Freeman cannot be sustained. The court made the statement when it was introduced: “The court admits the photograph in evidence and instructs the jury that the same is admitted for the purpose of enabling witness to explain his testimony, and for the purpose of enabling the jury to understand the testimony, and for no other purposes.” The picture was not introduced as substantive evidence.

In *Elliott v. Power Co.,*190 N. C., 62 (65), it is said: “Plaintiffs excepted because certain pictures were submitted to the jury. All of these pictures were used to explain the witnesses’ testimony to the jury. It was not error for the court to allow the jury to consider the pictures for this purpose and to give them such weight, if any, as the jury may find they are entitled to in explaining the testimony.” *Honeycutt v. Brick Co.,*196 N. C., 556; *Kelly v. Granite Co.,*200 N. C., 326; *Pearson v. Luther,*212 N. C., 412 (425).

As to the speed of the bus, as testified to by Humphries, it was immediately before the collision and competent. The probative force was for the jury. *S. v. Leonard,*195 N. C., 242 (251); *Barnes v. Teer, ante,*122.

The plaintiff contends that the court erred in permitting Clyde Lee to testify to a statement made by the bus driver about fifteen minutes after the collision, that he “thought he killed a man down the road.”

*330Tbe general principle of law is thus stated in *Young v. Stewart,*191 N. C., 297 (302-3): “A statement made as a part of the *res gestee*may be given as evidence, although the person by whom the statement is made does not testify as a witness at the trial. *rBes gestee*is generally defined/ says *Furches, C. J.,*in *Summerrow v. Baruch,*128 N. C., 202, To be what is said or done contemporaneous with the fact sought to be established, or, at least, so nearly contemporaneous in point of time as to constitute a part of the fact to be proved, and to form a part of it, or to explain it.’ The statement must be instinctive rather than narrative or the result of a deliberation. 'In order for a declaration to be admissible as a part of the *res gestee,*it must be the spontaneous utterance of the mind, while under the influence of the transaction, the best being, it has been said, whether the declaration was the facts talking through the party or the party talking about the facts.’ 22 C. J., 461, sec. 549, and cases cited; *S. v. Spivey,*151 N. C., 676; S. *v. Bethea,*186 N. C., 23. It is said that 'the modern tendency seems to be to treat spontaneity as a substitute for contemporaneousness, so that the act or declaration is not required to be exactly coincident in point of time with the main fact, but may even be separate from it by a considerable length of time, provided it is so immediately and closely connected with the main fact as to be practically inseparable therefrom, and serviceable to a clear understanding thereof, the element of time being of importance merely as bearing on the question of spontaneity.’ 22 C. J., 452. If a declaration is admissible as part of the *res gestee,*it is competent, no matter by whom said. *Queen v. Ins. Co.,*177 N. C., 34.” *Batchelor v. R. R.,*196 N. C., 84; *Brown v. Montgomery Ward & Co.,*217 N. C., 368 (371).

The evidence on which this exception and assignment of error is predicated — the testimony of B. T. Mullis, plaintiff’s bus driver, and Clyde Lee, witness for defendant — is as follows: (Mullis testified:) “Immediately after the collision, I turned on the light and looked at my passengers. None of them seemed seriously hurt — two were *skinned*— and *went bade to the car. I looked in and saw this boy in the car and he was not making any noise and I could not do anything with getting him out.*About that time there was a car coming from Shelby on the highway and I stopped and asked him would he run back to a phone or to Shelby and send an ambulance. I was at the Freeman car.” (Clyde Lee testified, in part:) “When I approached the scene of the wreck I saw the bus headed off into the field, headed toward Shelby. At that time I had not observed the other car. The bus was over on the right-hand side of the road in a ditch. I stopped and asked the bus driver if anybody was hurt. He was in the bus at the time with little pieces of paper getting the names of the people on the bus. He said (By the Court) Gentlemen of the Jury, this evidence is admitted to be consid*331ered by you simply as evidence tending *to corroborate or contradict plaintiff’s witness*Mullís as a witness and for no other purpose. It is not to be considered by you as substantive evidence. • Ans. (continuing) He was getting the names in the bus and I asked was anybody hurt and be said be did not think so, in the bus, and be said be thought be killed a man down the road. (By the Court) This evidence is admitted to be considered by the jury simply as evidence tending to corroborate or contradict plaintiff’s witness Mullís as a witness, and for no other purpose. It is not to be considered by you as substantive evidence.”

It will be noted that the bus driver, Mullís, bad already testified as a witness in the case, and in admitting the testimony the court charged the jury: “This evidence is admitted to be considered by you simply as evidence tending to corroborate or contradict plaintiff’s witness, Mullís, as a witness, and for no other purpose. It is not to be considered by you as substantive evidence.” And again, the court, after the evidence was given by the witness Lee, instructed the jury to the same effect, in its consideration of this evidence. The evidence was not offered as part of the *res gestee.*“I saw this boy in the car and he was not making any noise.” Mullís told Clyde Lee “that he thought he had killed a man down the road.” The whole evidence shows that he did kill him. The evidence is corroborative and so admitted. It was not prejudicial. The contention cannot be sustained.

The plaintiff contends that the charge of the court below failed to comply with C. S., 564, in that it failed to properly explain and apply the law to the facts. We cannot so hold. The court below defined correctly negligence, contributory negligence, burden of proof and proximate cause. The charge set forth the applicable statutes of the law of the road germane to the facts. The contentions on both sides were fairly and correctly given. The charge consisted of 46 pages, covering every conceivable attitude of the law applicable to the facts. It was a careful, well considered charge and in it we can find no prejudicial or reversible error. None of the exceptions and assignments of error made by plaintiff can be sustained.

No error.

Barnhill, J.,

concurring in result: I cannot agree that plaintiff’s prayers for instruction Nos. 1 and 2 constitute a peremptory instruction against the defendants and in favor of the plaintiff. When the facts are admitted or established the court must say whether negligence does or does not exist. “This rule extends and applies not only to the question of negligent breach of duty, but also to the feature of proximate cause.” *Hicks v. Mfg. Co.,*138 N. C., 319; *Russell v. R. R.,*118 N. C., 1098; *Lineberry v. R. R.,*187 N. C., 786, 123 S. E., 1; *Clinard v. Elec*
      *332
      *tric Co.,*192 N. C., 736, 136 S. E., 1; *Murray v. R. R., post,*392. Speaking to tbe subject in *Lineberry v. R. R., supra, Clarlcson, J.,*said: “It is well settled *that*where tbe facts are all admitted (or established) and only one inference may be drawn from them, the court will declare whether an act was the proximate cause of the injury or not.”

On this record the collision was caused by reason of the fact that either one or the other vehicle was being operated on its left-hand side of the road. This seems to he admitted. The plaintiff simply prayed the court to instruct the jury that if it found that plaintiff’s contention that the defendant’s automobile was being operated on its left-hand side of the road was established by the evidence then that constituted negligence, as a matter of law, and was the proximate cause of the collision. No other conclusion was reasonable. *Burke v. Coach Co., 198*N. C., 8, 150 S. E., 636; *Butner v. Spease,*217 N. C., 82. The prayers for instruction left to the jury the finding of fact upon which they were to apply the law. They not only do not constitute a peremptory instruction but are correct statements of law as applied to the evidence in this case.

I am not inadvertent to what was said in the opinion in *Groome v. Davis,*215 N. C., 510, 2 S. E. (2d), 771. In that case the Court was dealing with the statutory rights of motorists who approach an intersection at right angles to each other. I do not now challenge the correctness of that opinion as applied to the facts of that record. But, it must not be understood that what was there said constitutes a general statement of the law applicable in all cases. At intersections neither motorist has an unqualified right to any part of the intersection because both must use it. But when motorists are approaching and passing each other on an improved, unobstructed highway, each has a right to his half of the road and neither has a right to encroach upon the line of trafile of the other. Ch. 407, Public Laws 1937, secs. 108 and 112; *Shirley v. Ayers,*201 N. C., 51, 158 S. E., 840.

Nor can I agree that plaintiff’s prayer for instruction No. 3 was substantially given in the general charge. This prayer was materially and erroneously modified by the court. When the doctrine of last clear chance is not pleaded and the evidence is not such as to invoke its application the right of a motorist who is driving on his right-hand side of the road to assume that the operator of a motor vehicle approaching from the opposite direction will seasonably turn to its right-hand side of the highway so as to pass in safety is not limited to those who are strictly and scrupulously driving within the statutory speed limit. Circumstances which would limit or restrict this right may arise. But, ordinarily, the right to so assume is the right of every motorist. *Shirley v. Ayers, supra; Guthrie v. Gocking,*214 N. C., 513, 199 S. E., 707; *333
      *Burke v. Coach Co., supra.*See also *Bowen v. Schnibben,*184 N. C., 248, 114 S. E., 170. The action of the court in conditioning plaintiff’s right to so assume upon the finding that the driver of the bus “was driving in a lawful manner” was error.

To make a practical application of the instruction as modified by the court: if the bus driver was on his right-hand side of the highway and was proceeding at a rate of speed of less than 45 miles per hour, he had a right to assume that Freeman would stay on his own side of the highway ; but, if the bus driver was going at a rate of 46 miles per hour or more, he did not have the right to act on such assumption. This is not the law as written in the statute. Oh. 407, Public Laws 1937, sees. 108, 110 and 112.

Assignments of error Nos. 12, 13, 14 are not mentioned or discussed in the majority opinion. These assignments are directed to the action of the court in instructing the jury in respect to the alleged negligence of the plaintiff and applying the law in respect thereto to the first issue. The first issue was directed only to the question of the negligence of the defendant. These instructions placed upon the plaintiff the burden of showing that its driver was not negligent. This placed an undue burden on the plaintiff, tended to confuse and was error. *Lea v. Uiilities Co.,*178 N. C., 509, 101 S. E., 19; *Ogle v. Gibson,*214 N. C., 127, 198 S. E., 598. This is particularly true in view of the fact that contributory negligence of plaintiff was not pleaded.

Notwithstanding the errors above indicated, I am compelled to the view that the judgment below should be affirmed. In the final analysis the issue of fact on the question of negligence was simple. Which vehicle was being operated on its left-hand side of the highway? When the court came to apply the law to the facts in the case, as required by C. S., 564, it disregarded its former abstract definitions of the law and its references to immaterial provisions in the Automobile Law and simply, clearly and directly explained and applied the law on the one real fact at issue. Under those instructions the jury has found that plaintiff’s bus, and not Freeman’s automobile, was being operated on its left-hand side of the highway. This being true, it was the proximate cause of the collision. Certainly the jury was justified in so finding. Therefore, the indicated error was not sufficiently prejudicial to require a new trial.

Stacy, C. J., and WihboeNE, J., join in this opinion.