#### LEALER JONES, Administratrix of the Estate of Wiley Jones, Deceased v. S. T. HODGE.

(Filed 29 April, 1959.)

1. Automobiles § 47: Death § 3— Evidence held insufficient to show that passenger’s fall from trade was caused by negligent operation of the truck.

Evidence tending to show that defendant permitted intestate to ride on the back of Ms truck, that defendant, realizing he was passing the place 'intestate wanted to get off, jammed on his ¡brakes, and just as the truck was slowing down, saw, through the rear view mirror, intestate falling from the truck, is *held*insufficient to be submitted to the jury in this action for wrongful death, since, even conceding there was evb dence sufficient to support a finding that intestate’s fall from the truck was 'the proximate cause of death, the sudden deceleration of 'the truck would tend to throw a passenger in the body against 'the back of the cab rather than throw 'him from the truck, and whether defendant’s actions caused intestate ¡to fall, or whether intestate attempted to jump from 'the truck as he saw he was .passing his stopping place, or what actually caused Ms fall, is left in conjecture and speculation.

2. Same: Automobiles § 40: Evidence § 29—

A statement by defendant to .the injured man’s wife at the hospital, ■after the accident in suit, to the effect that he would take care of tli? matter because he was at fault, is not an admission of negligence, but amónate to nothing more than a conclusion, and is insufficient to take •the issue of negligence to the jury when such conclusion is not actually borne out by the facts in evidence.

Appeal by plaintiff from *Nimocks,*J., December, 1958, Special A Term, Wake Superior Court.

Civil 'action by the Administratrix, Lealer Jones, ¡to recover for the alleged wrongful death of her husband, Wiley Jones. At the conclusion of all the evidence, judgment ¡of involuntary nonsuit was entered, to which the plaintiff excepted and from which she appealed.

*Taylor & Mitchell for plaintiff, appellant.*

*Smith, Leach, Anderson ■& Dorsett for defendant, appellee.*

HiggiNS, J.

The defendant, driving bis .pickup truck south on Strickland Road in Wake County, at ’about nine o’clock in the morning of November 5, 1957, overtook plaintiff’s intestate, Wiley Jones, walking .south along the highway. The defendant recognized Jones, stopped his truck, .and invited him to ride. Jones accepted the invitation, climbed .into the body ¡of the truck which contained 700 to 800 pounds of cotton tied in sheets. The defendant’s wife and three small children were riding in the caJb. When Jones got in the back of the *228truck, be said, “Go ahead.” The defendant knew Jones wanted to ■stop at the home of his brother who lived a short distance down the road.

The further evidence most favorable to the plaintiff permits the inference the defendant realized <he was passing the place where Jones wanted to get off, jammed on his brakes, and just as the truck was slowing down, the defendant, through his rear view mirror, saw something like a coat fly through 'the air. The inference is permissible the defendant saw Jones falling from the truck. Jiones was picked up, ■taken to the hospital immediately 'after the 'accident, remained in the hospital without regaining ’consciousness until -his death on December 11, 1957.

The attending physician testified as to the facial injuries, broken nose, broken 'and loosened teeth, injured mouth and igums, contusions ■about the head and face, a broken finger’, and partial paralysis indicating injury to the brain. He testified that Jones had suffered previously from high blood pressure and deterioration of the arteries. The physician expressed the opinion the injuries were sufficient to have caused unconsciousness; but his somewhat timid opinion w-as that Jones had bad a stroke. Whether the stroke caused the fall or the fall and injury caulsed the 'stroke, the doctor did not express opinion.

Applying the rule that ail legitimate inferences from the evidence must be drawn in favor of the plaintiff on motion to nonsuit, we conclude the evidence was sufficient to go to the jury and to support a finding that the fall from the truck was the proximate cause of the injury. But the serious question is what caused the fall. The adminis-tratrix, wife of the intestate, testified to /a conversation with the defendant at the hospital after the accident, and that the defendant stated: “Don’t worry, I will take care of it, because I know I am i-n fault.” The evidence with respect to the intestate’s becoming a passenger in the truck and his fall from it came from the sons of the deceased who testified on the basis of the defendant’s statements to them after the accident.

The plaintiff contends the evidence, and especially the defendant’s statement, “I know I am in fault,” was sufficient to go to the jury on the question of defendant’s 'actionable negligence. She cites in support, *Hobbs v. Queen City Coach Co.,*225 N.C. 323, 34 S.E. 2d 211; and *Wells v. Burton Lines, Inc.,*228 N.C. 422, 45 S.E. 2d 569. However, the only negligent .act charged .against the defendant is that he slammed on his brakes and stopped too suddenly, causing the .plaintiff’s intestate to fall from the truck. The truck had a metal body with *229wooden side hoards as high as the /top of the ©ah, with a small hole through which the rear view mirror permitted t'he driver limited vision in that direction.

A truck, rapidly reducing speed by sudden pressure on the brakes, might throw a passenger in the cab against the instrument board, or a passenger in the body against (the back of the cab. But it is simply against the law of physics for the sudden ©lowing down of forward movement to carry rearward thrust. The tendency is for a moving body to continue the movement substantially in the -same direction unless .acted upon by some other force. For all we know, Jones saw the truck passing ‘his stopping place, miscalculated the speed, and tried to get out. This is only supposition. What actually caused his fall is left in that category.

Do the defendant’s admissions, “I know I am in fault,” change the picture? The evidence is that after Jones got in the body of the truck the defendant never saw him again until he saw, in his rear view mirror, a coat or elomehbmg fly up as he was applying his brakes. In view of the evidence as to what the defendant said, which we must take <as true, although he denied it, his statement, “Don’t worry, I will take care of it, because I know I am in fault,” made to the injured man’s wife at the hospital, is nothing more than his conclusion. But the conclusion is not home out by the actual facts in evidence. Facts and .statements, similar to those in evidence here, were held insufficient to make out a case. *Lucas v. White,*248 N.C. 38, 102 S.E. 2d 387; *Austin v. Overton,*222 N.C. 89, 21 S.E. 2d 887; see also, *State v. Tingen,*247 N.C. 384, 100 S.E. 2d 874; *Lane v. Bryan,*246 N.C. 108, 97 S.E. 2d 411.

We hold that the facts in this *case*/are insufficient to .support a finding of actionable negligence. The judgment of nonsuit is

Affirmed.