#### W. REUBIN RUDD v. R. L. HOLMES.

(Filed 30 April, 1930.)

Highways B h — Failure to submit question of whether intersection was obstructed within meaning of C. S., 2621 (46) held erroneous.

The burden is upon the plaintiff to prove each of the elements necessary to constitute negligence, and where in an action to recover for an injury alleged to have been caused by the defendant’s driving an automobile past an obstructed intersection at a speed in excess of fifteen miles per hour, O. S., 2621(46), and the defendant does not admit that the intersection was obstructed, but the testimony of one witness, if believed, would be sufficient to show that the defendant’s view was obstructed: *Held,*an instruction which assumes the fact that the intersection was obstructed is reversible error, the question being for the determination of the jury from the evidence.

Appeal by defendant from *McElroy, J.,*at January Term, 1930, of Guilford. New trial.

*H. B. Stanley for plaintiff.*

*John W. Hester and T. Glenn Henderson for defendant.*

Adams, J.

Tbis is an action for tbe recovery of damages for personal injury arising out of tbe collision of automobiles, alleged to bave been caused by tbe negligence of defendant. Tbe issues of negligence, contributory negligence, and damages were answered in favor of tbe plaintiff, and from tbe judgment tbe defendant appealed.

Tbe defendant was driving bis car on Highway No. 70, wbicb runs north and south, and was going from Greensboro to Eeidsville. Three miles and a half north of Greensboro tbe McKnight mill road intersects with tbe highway. It extends from tbe highway in a northeasterly di*641rection. There is a building on each side of the road at its junction with the highway. The plaintiff said that the Andrews store was ten or fifteen feet east of the highway and south of the McKnight road, and that the Lucas filling station was about two hundred and fifty feet down the McKnight road. One of his witnesses said that the Andrews store was about forty feet from the highway, and -that a man sitting in a car thirty-five feet from the highway had an open view to the south of about six hundred feet. The defendant testified that as he approached the intersection he was making about forty miles an hour and twenty miles at the time of the collision. The statute provides that the speed of a car must be restricted to fifteen miles an hour when approaching within fifty feet and in traversing an intersection of highways when the driver’s view is obstructed, and that a driver’s view shall be deemed to be obstructed when at any one time during the last one hundred feet of his approach to such intersection he does not have a clear and uninterrupted view of such intersection and of the traffic upon all of the highways entering such intersection for a distance of two hundred feet from such intersection. C. S., 2621(46).

His Honor gave the jury this instruction:

> “Now, gentlemen of the jury, the court charges you that if the defendant in this case approached the intersecting highway there, and within fifty feet of the intersecting highway was operating his car at a greater rate of speed than fifteen miles per hour, then, gentlemen of the jury, the court charges you that he would be guilty of negligence, and if so operating his car at a greater rate of speed than fifteen miles an hour was the direct and proximate cause of plaintiff’s injury, if the plaintiff has satisfied you by the greater weight of the evidence of those facts, that then it would be your duty to answer the first issue Yes.”

> The defendant excepted on the ground that the instruction assumes as a fact that the defendant’s view was obstructed. Whether his view was obstructed was undetermined. The defendant did not admit it, and in his brief the plaintiff says that no witness distinctly testified to it, although the testimony of the plaintiff, Dewey Harris, and J. E. Lucas is sufficient to show, if believed, that the defendant’s view was obstructed. The evidence may have been sufficient, but the jury had no opportunity to decide the question. The burden was upon the plaintiff to prove each of the elements necessary to constitute negligence, including the plaintiff’s failure to restrict his speed, because when approaching the intersection his view was obstructed.

New trial.