#### MACE L. WADSWORTH and Husband, J. C. WADSWORTH, Jr., v. NATIONAL CONVOY AND TRUCKING COMPANY.

(Filed 21 December, 1932.)

Negligence D c — Nonsuit for contributory negligence should be denied when more than pne inference as to proximate canse can be drawn from evidence.

In an action to recover for a negligent personal injury a motion as of nonsuit based upon contributory negligence of the plaintiff will not be granted unless there is but one reasonable inference that may be drawn from the evidence in regard to the proximate result of plaintiff’s con-*731tributary negligence, but where more than one inference can be drawn from the evidence the question of proximate cause must ordinarily be submitted to the jury, and in this case the defendant’s motion as of nonsuit should have been denied.

Appeal by plaintiffs from a judgment of nonsuit rendered by *MacBae, Special Judge,*at February Term, 1932, of CabahRus.

Eeversed.

*B. W. Blackwelder for appellants.*

*J. Laurence Jones and Hartsell & Hartsell for appellee.*

Adams, J.

Ths is an action for damages suffered by the *feme*plaintiff to ber person and ber property by reason of a collision of ber car with a truck operated by the defendant. The case is bere on appeal from a nonsuit granted at the close of the plaintiff’s evidence.

The collision occurred on 8 May, 1931, at seven-fifteen in the evening. The plaintiffs were in a Buick coupe going on Highway 15 from Concord to Charlotte. Four hundred yards south of the Jackson Training School the road curves to the right — “a long sweeping curve.” The coupe was moving at the rate of forty miles an hour. The defendant’s truck traveling in the direction of Concord came around the curve. It was about sixty-two feet long and was loaded with four new Ford cars; its bead and tail lights were burning; as to whether there were side lights at the time of the accident the testimony is conflicting. The driver of the coupe thought it was an ordinary car.

In tbe center of tbe bard surface there was a black line six or seven inches wide. Tbe evidence tended to show that tbe rear wheel of tbe truck was eighteen inches over tbe line on tbe wrong side of tbe road, and that tbe trailer extended from twelve to fifteen feet behind tbe rear wheel. Tbe driver of tbe coupe testified that be could not “pull over and miss tbe rear end of tbe truck on account of a bad shoulder on tbe right”; also, that if be bad been looking be could not have seen that tbe wheel was over tbe line.

Tbe defendant admits its own negligence, but contends that tbe contributory negligence of tbe plaintiffs bars recovery and that tbis position should be sustained as a matter of law. For tbe purpose of supporting its contention the defendant cites *Davis v. Jeffreys,*197 N. C., 712, *Scott v. Tel. Co.,*198 N. C., 795, and other cases of similar import. Tbe argument applies when only one reasonable conclusion can be drawn from tbe plaintiff’s evidence in, regard to tbe proximate result of bis concurring negligence and be proves himself out of court. Tbe failure to discharge an affirmative duty may be a negligent act, but if more than one inference may be drawn from tbe evidence, tbe question of proximate *732cause must as a rule be determined by the jury. *Stultz v. Thomas,*182 N. C., 470; *Fox v. Texas Co.,*180 N. C., 543; *Ridge v. High Point,*176 N. C., 421.

This is the principle to be applied in the case before us. The judgment is

Eeversed.