#### STATE v. MITCHELL A. HOUGH.

(Filed 5 June, 1947.)

1. Criminal Law § 52a—

Upon a motion to nonsuit, the evidence is to he considered in the light most favorable for the State and defendant’s evidence in conflict with that of the State will not be considered.

2. Automobiles § 28e — Evidence of culpable negligence in driving of automobile held sufficient for' the jury.

The evidence tended to show that the car driven by defendant struck the rear of a parked wrecker at nighttime, swerved by the wrecker, ran off to the left side of the highway, ran up and down an embankment, careened back across the highway and turned over about 130 feet from the point of collision. There was evidence tending to show that defendant had been drinking. There was conflict in the evidence as to whether the lights were burning on the wrecker and as to whether it was parked entirely off the pavement and- as to whether there was other traffic on the road at the time. *Held:*There was sufficient evidence to support the jury’s finding that defendant was guilty of culpable negligence.

3. Criminal Law § 81c (2) —

The charge of the court will be considered contextually.

Appeal by defendant from *Rousseau, J.,*at September Term, 1946, of Forsyth.

Criminal prosecution on indictment charging the defendant with the slaying of one Cleona Súber, with a deadly weapon, to wit, an automobile.

The State’s evidence tends to show that on the night of 17 March, 1946, Clarence Counts was returning in his automobile from a roadhouse near "Winston-Salem when he had a puncture. He went to town, secured a wrecker and returned with Albert Y. Brown driving. They passed the Counts car, turned the wrecker around and stopped it off the pavement about 10 feet behind the Counts car, with its lights burning, brakes set and the motor running. Before Counts and Brown could get out of the wrecker, it was struck from the rear by a LaSalle car driven by the de-*597fendaiit, and pushed forward about six feet. After striking tbe wrecker tbe defendant’s car swerved by tbe wrecker, ran off to tbe left side of tbe bigbway, ran up and down an embankment, careened back across tbe highway and turned over about 130 feet from tbe point of collision. Tbe defendant’s car was demolished and one of its occupants, Cleona Súber, was killed. Soon after tbe defendant’s ear came to rest, someone threw a bottle out of it into tbe field near-by. It was found to be a pint bottle with a small amount of whiskey in it. Tbe defendant bad a strong odor of listerine on bis breath. Tbe time of tbe collision was about 1:30 a.m., and tbe moon was shining brightly. There was no other traffic in sight at tbe time.

According to tbe defendant’s evidence be was also returning from a roadhouse, and just before tbe impact be met a truck-trailer with its lights on, going in tbe opposite direction. Because of this be did not see tbe parked wrecker in time to avoid sideswiping it. Tbe wrecker was not entirely off tbe pavement, and it was unlighted. Tbe defendant says: *“I*dimmed my lights when I met tbe trailer, and it was just hazy foggy just a little bit, and just as tbe trailer part of tbe truck passed me, I switched my lights back on bright, and there stood this wrecker. . . . I wasn’t making over 40 miles per hour. . . . There wasn’t a drop of liquor in my car.”

At tbe close of tbe evidence, tbe court sustained tbe motion to nonsuit as to Albert Y. Brown and overruled it as to Mitchell A. Hough.

Yerdict: Guilty.

Judgment: Six months on tbe roads.

Tbe defendant appeals, assigning errors.

*Attorney-General McMullan and Assistant Attorneys-General Bruton, Rhodes, and Moody for the State.*

*Beal ■& Hutchins for defendant.*

Stacy, C. J.

Yiewing tbe evidence in its most favorable light for tbe prosecution, tbe accepted position on motion to nonsuit, it seems sufficient to carry tbe case to tbe jury. It is true, tbe defendant’s evidence, if accepted in its entirety, would tend to leave tbe question of culpable negligence in doubt. *S. v. Lowery,*223 N. C., 598, 27 S. E. (2d), 638. However, tbe jury has accepted tbe State’s version of tbe matter, and rejected tbe defendant’s theory of tbe case. *S. v. Sudderth,*184 N. C., 753, 114 S. E., 828. No doubt tbe force of tbe impact, tbe destruction and death which followed tbe collision, and tbe circumstances surrounding tbe incident, led tbe jury to believe that tbe defendant’s car was being driven faster than be thought or else be was unable to control it. Physical facts speak their own language and are often beard above thr *598voices of witnesses. *Atkins v. Transportation Co.,*224 N. C., 688, 32 S. E. (2d), 209; *Powers v. Sternberg,*213 N. C., 41, 195 S. E., 88.

The jury found that the defendant was culpably negligent. There is evidence to support the finding. *S. v. Cope,*204 N. C., 28, 167 S. E., 456; *S. v. Stansell,*203 N. C., 69, 164 S. E., 580; *S. v. Satterfield,*198 N. C., 682, 153 S. E., 155. The facts here are quite different from those appearing in the case of *S. v. Lowery, supra,*upon which the defendant strongly relies.

The exceptions to the charge are also untenable. While somewhat meager in its application of proximate cause, it will do when considered contextually. *S. v. Davis,*225 N. C., 117, 33 S. E. (2d), 623.

A careful perusal of the record leaves us with the impression that no reversible error has been made to appear. Hence, the verdict and judgment will be upheld.

No error.