#### JAMES M. DOWNS, Administrator of the Estate of JAMES DOWNS, JR., deceased v. CLYDE W. ODOM and J. T. ODOM, t/a ODOM TILE COMPANY, and ERNEST TAYLOR, JR.

(Filed 8 April, 1959.)

1. Automobiles § 17—

G.'S. 20-155(a), providing' that the vehicle on the right has the right of way at an intersection which has no stop signs or traffic signals, applies only when two vehicles approach or enter the intersection at approximately the same time.

3. Same—

The vehicle first reaching an intersection which has no stop signs or traffic signals has the rig'ht of way over a vehicle subsequently reaching *82it, irrespective of their directions of travel, and it is the duty of the driver- of the later vehicle to delay his progress and allow the vehicle which first entered the intersection to pass in safety.

3. Automobiles §§ 41g, 42g— Evidence held for jury on question of negligence in entering intex-section after another car had entered the intersection.

idle evidence tended to show that the ear in which plaintiff’s intestate was riding was being operated by ¡has another, south at a speed of 15 or 20 -miles per hour, and that defendant's truck was being operated east at a speed of 35 or 40 miles per hour, in -approaching -an intersection ¡having a legal speed limit of 25 miles per hour, that the car in which intestate was riding was first in the intersection, and was struck on its light side just back of the headlight, and that the impact occurred on -the west side o-f -the center -of the intersection. *Sold,:*The evidence was sufficient to he submitted to -the jury on the issue -of defendant’s negligence and does mot disclose negligence as -a matter of law on -the part of intestate’s m-other which could be imputed to plaintiff as a bar to recovery.

Appeal by plaintiff from *Sharp, Special Judge,*November Term 1958 of Edgecombe.

This is an action instituted by the plaintiff to recover damages from the defendants -on account of the wrongful death of plaintiffs intestate w-h-en a truck belonging to defendants Odom and -operated by the defendant Taylor collided with the Downs automobile.

Plaintiff’s intestate, -a 4-moat<hs-old -child, was riding in the -automobile being -operated by Joyce S. Downs, the mother -o-f plaintiff’s intestate, which w-as proceeding South -on -St. Patrick’s Street in Tar-boro, North Carolina. Tire defendants’ pick-up truck being operated by the defendant Ernest Taylor, Jr. Was proceeding E-ast on Bark Avenue. In the intersection -of these streets the -automobile in which plaintiff’s intestate was -riding w-a-s struck on its right side'just behind the headlight -bade to the door. Skid marks from the point -of impact westward up Park Avenue made by the defendants’ pick-up measured 45 feet. Testimony indicated that the Downs automobile was traveling 15 -or 20 miles per -hour -and the pick-up truck was traveling 35 or 40 miles per hour in a 25 miles -per -bom- zone. Joy-ce S. Downs testified -after -regaining consciousness in the ho-spital that she -had no recollection -o-f the wreck. It was testified that the driver of the pick-up truck said that he observed the Downs ■aut-o-mobile when he was 45 feet from the intersection -and put on brakes but was unable to -stop before -hitting the -car.

John Henry T-ayl-or was riding with the defendant Ernest Taylor, Jr. as -a guest passenger in the Odom truck -at the -time of the accident. He was not -an employee of the Odoms. This witness testified: *83“As we were approaching the intersection oí St. Patrick Street I looked out the right window across the Common. I turned my head back and looked down Park Avenue just before we reached the intersection. At that time Ernest Taylor was putting on brakes. I don’t know exactly how far in feet the truck was from the intersection of St. Patrick and Park Avenue. We had not completely reached the intersection as I turned around. I saw the front end of Mrs. Downs’ car. It was entering the intersection. * * * I did not see anything but the front end in the intersection. * * * When I first turned around and saw the Downs car I don’t know exactly where the truck was but the brakes were already skidding * *. I can say for sure the truck had not ’already got to the intersection.”

Plaintiff’s evidence tends to show that tire accident occurred on the Wesit ‘side of the center of the intersection; that the iskid marks of the truck ended in the intersection approximately six feet from the curb line. St. Patrick’s Street on the North side of Park Avenue -is 27 feet wide and on the South .side of Park Avenue it is 30 feet 6 inches wide. Park Avenue is 24 feet wide.

At the close of plaintiff’s evidence the defendants moved for judgment as of nonsuit. Motion was allowed and the plaintiff appeals, assigning error.

*Fountain, Fountain, Bridges & Horton for plaintiff.*

Battle, Winslow & Merrell, iby Robert M. Wiley, for defendants.

DeNNY, J.

The only question presented for determination on this appeal is whether or not the trial court committed error in sustaining the defendants’ motion for judgment as of nonsuit.

The 'accident occurred at an intersection which had no stop signs or traffic signals. The statute governing such an intersection is G.S. 20-155, ■which in pertinent part reads a® follows: “(a) When two vehicles approach or enter’ an intersection and/or junction at approximately the same time, the driver of the vehicle on the left shall yield the right of way to the vehicle on the right * * *. (b) The driver of a vehicle approaching but not having entered an intersection and/or junction, shall yield the right of way to a vehicle 'already within such intersection and/or junction whether the vehicle in the junction is proceeding straight .ahead .or turning in either direction * *

Subsection (a) of the above statute does not 'apply unless the two vehicles .approach or enter the intersection at ‘approximately the same time. Under subsection (b) of the .statute the vehicle first reaching an intersection which has no stop sign or traffic signal has the right *84•of way over a vehicle subsequently reaching it, irrespective of their directions of travel; .and it is the duity of the driver of the latter vehicle to delay his progress and allow the vehicle which first entered the intersection to pass in safety. *S. v. Hill,*233 N.C. 61, 62 S.E. 2d 532; *Donlop v. Snyder,*234 N.C. 627, 68 S.E. 2d 316; *Kennedy v. Smith,*226 N.C. 514, 39 S.E. 2d 380; *Crone v. Fisher,*223 N.C. 635, 27 S.E. 2d 642; *Yellow Cab Co. v. Sanders,*223 N.C. 626, 27 S.E. 2d 631.

The defendants cite and rely on *Taylor v. Brake,*245 N.C. 553, 96 S.E. 2d 686; *Freeman v. Preddy,*237 N.C. 734, 76 S.E. 2d 159; and *Bennett v. Stephenson,*237 N.C. 377, 75 S.E. 2d 147. We think the facts in these cases are distinguishable from .those in the instant case.

In *Taylor v. Brake supra,*the facts were somewhat similar to those involved on this .appeal, except there was no -evidence that either car involved in the collision was exceeding the speed limit. At the close of all the evidence the court sustained the defendants’ motion for judgment a-s of non-suit. On -appeal, this Court, speaking through *Parker, J.,*said: “Plaintiff contends that the case ¡should have been submitted to the jury on the theory that 'he was already within the intersection when the defendant Brake approached it. This Court said in *Cox v. Freight Lines*and *Matthews v. Freight Lines,*236 N.C. 72, 72 S.E. 2d 25: ‘The court cannJot submit -a case to the juiry on -a -particular theory unless -such theory is supported -by both the pleadings and the evidence.’ Plaintiff has not alleged any where in his corn-plaint that he was -already within the intersection, when the defendant Brake approached the intersection but had not entered it, nor has he testified that he entered the intersection first. It is true that plaintiff alleged the defendants were negligent by ‘negligently, recklessly and carelessly failing to yield the right -of w-ay to this plaintiff’s automobile -as by law required.’ ‘To -characterize an act or course of conduct -as negligent without more is insufficient. As stated in McIntosh -on Prac. and Proc., sec. 388, “In negligence oases, a general allegation of negligence is insufficient -and -the facts constituting negligence must be given and that it was the cause of plaintiff’s injury.” ’ *Fleming v. Light Co.,*232 N.C. 457, 61 S.E. 2d 364. This allegation is insufficient to support plaintiff’s theory that plaintiff -had the right of waly by virtue of G.S. 20-155 (b).” The judgment as of nonsuit was affirmed.

In the in-shant c-ase the -plaintiff alleged in his pleadings and offered testimony -at the trial tending to show (that the Downs car entered the intersection first.

In the case -of *Freeman v. Preddy, supra,*the case was submitted to the jury -on plaintiff’s -cause of action -and the defendants’ cross-action. Issues of negligence, contributoiy negligence and dam-ages *85were submitted to the jury. Tire jury answered the issues of negligence and contributory negligence hr the affirmative as to both causes of action. On appeal by the defendants, we found no error.

In the case of *Bennett v. Stephenson, supra,*tire evidence was to the effect that both cars were ‘being operated around 30 miles per hour; that the collision occurred in the intersection of West Edgerton Street and North Orange Avenue, in tire Town of Durar, slightly West of the center of the intersection. Skid marks from each ear measured 36 feet. On appeal from a judgment as of nonsuit, we affirmed.

In the instant ease it was stipulated that the legal speed limit where the accident occurred was 25 miles per hour. There is evidence that the Downs car’ was being operated at a speed of 15 or 20 miles per hour and that the Odom truck was being operated at a speed of 35 or 40 miles per hour.

On a motion for judgment a-s of nonsuit a plaintiff is entitled to have the evidence considered in the light most favorable to him and to the benefit of every reasonable inference to be drawn therefrom. When tire, evidence is so considered, we think it is sufficient to carry the case ¡bo the jury. *Donlop v. Snyder, supra,*and cited cases.

In our opinion, the question as to whether or not the driver of the Downs car was guilty of contributory negligence by entering the intersection at the time and under the conditions then existing, is for the jury. *Donlop v. Snyder, supra; Kennedy v. Smith, supra.*

The judgment of the court below is

Reversed.