#### J. ED STEVENS v. J. T. ROSTAN, SIRVIO MARTINETTE and EARL B. SEARCY, Trading and Doing Business as the WALDENSIAN BAKERY COMPANY.

(Filed 28 November, 1928.)

1. Highways — Regulation and Use for Travel — Law of the Road — Automobiles — N egligence — N onsuit.

Where there was evidence that the plaintiff, desiring to pass a truck on the highway going in the same direction, blew his horn, and that the driver of the truck heard the signal, but instead of driving to the right of the center of the road to allow the plaintiff to pass on the left, drove to the left and stopped or came almost to a stop, that the plaintiff, thinking that the truck was going to stop, and having his car under control, attempted to pass on the right, when the truck suddenly turned to the right, forcing the plaintiff to turn to the right to avoid hitting the truck, causing the plaintiff’s car to run off the embankment on the right of the road, resulting in the injury in suit: *Held,*the evidence should have been submitted to the jury upon issues of negligence, contributory negligence and damages. C. S., 2617.

*3152. Trial — Taking Question or Case from Jury — Nonsuit.

Where the plaintiff’s evidence is conflicting in some respects its credibility is for the jury; and *Held,,*under the facts of this case, the evidence viewed in the light most favorable to the plaintiff was sufficient on the question of defendant’s actionable negligence to be submitted to the jury.

Appeal by plaintiff from *Finley, J.,*at June Term, 1928, of Bueke.

Reversed.

This is an action for actionable negligence. Tbe plaintiff testified tba.t on 26 August, 1926, be was driving a Maxwell touring car; witb him in tbe car were Mrs. *W.*R. Absber and ber daughter. Going east from Asbeville, N. C., on Highway No. 10, between 5 and 6 o’clock in tbe evening, wben approaching tbe village of Glen Alpine, be noticed a truck in front of bim. It was being driven in tbe center of tbe highway. He drove up and slowed down behind tbe truck and blew bis born. “He (tbe driver of tbe bread truck) began to pull over to the left of tbe road and continued pulling over to tbe left until be was almost in front of tbe garage there, and be almost came to a stop. I don’t know that be did stop, but he was very slow, and be turned across to tbe right very suddenly right in front of me. Wben be pulled towards tbe left, bis car went off of tbe pavement. I was still on the pavement on tbe right-band side. There was nothing to obstruct my line of vision down tbe right-band side of tbe highway. It was a straight line and no cars were coming. There was nothing in my right of way on my right-band side wben be drew bis truck in front of me. I slowed up until be went off of tbe highway and then I speeded up. I bad my car under control, and when the truck went across the road I threw my car suddenly to tbe right to keep from going bead on. He gave no signal that I saw or beard. Tbe truck is about 17 feet long, I imagine, or more, and it was about two feet, as well as I remember, off tbe pavement on tbe right-band side; tbe front wheel of tbe truck was about two feet off tbe pavement on tbe right-band side. '■ It was that way after tbe wreck, when tbe truck stopped. It extended back across the highway about five feet. When tbe truck came in front of me, I suddenly turned to tbe right to keep from going bead' on into the truck. Then I ran off and turned over a wall. . . . When he threw bis car across tbe road in front of me, of course it was just like that (quick movement), and I was right' on bim, and I threw my car to tbe right very suddenly. It was tbe only thing I could do or bit bim. When bis truck was in that position, I could not turn to tbe left to pass him because I was almost on bim. . . . (Cross-examination) I will swear now that I don’t know whether I did nor did not blow my born to signal that I desired to pass. . . . ■ There was a wide place on tbe north' side of tbe highway in front of tbe garage, on tbe lefGhand side a good sized space. There was *316not plenty of room to bave passed on tbe left. There was abundant room north of the highway to have passed — about 90 feet. ... I was aware of the fact that under the law it was my duty to notify the driver of that truck of the fact that a. car was in the rear and desired to pass and afford him an opportunity of moving to the right of the center of that highway before I undertook to pass, and I did notify him. I thought he was going to park there. I thought that, although his car was still in motion, and there was nothing on the right-hand side for him to turn into except that vacant lot. I saw the filling station on the south side of the highway and did not know but what he was going to enter it. I knew that under the rules regulating traffic on the highway that it was my duty to slacken the speed of my car and, if necessary, to stop it and delay my effort to pass until he had gone to the right of the center- of the highway and afforded room to pass on the left of the truck, and that it was a violation of the law and indictable if you passed or attempted to pass on the right of the truck. He had surrendered the right of way and left it to me; had left the highway to a certain extent. The two wheels were off, but I can’t say whether he had stopped the truck or not. I will not tell the court and the jury that I did not pay enough attention to it to tell them whether the truck had stopped or was in motion. I just say that I don’t know. . . . This sounding of the horn that I spoke of was some distance from the garage, about 150 or maybe 200 feet west of the garage, I should think. I could not have passed the truck on the left. There would have been no accident if I had delayed my effort to pass until the highway was clear on the left of the truck, and I could have delayed it. So far as I know, the driver of that truck did not know that I was in the rear. He did not give any signal to let me know that he knew I was back there.” (Redirect examination.) “He did not give me any signal that he was turning-in. I did not know that he was parking there. Q. You were asked a while ago if you had stopped and waited for that truck to turn across and go in there would there have been no accident. If he had stopped where you signalled him, would there have been any accident ? A. There would have been no accident. ... It was so sudden the way the truck came across in front of me that I did not have time to think of anything.”

Mrs. *W.*R. Absher testified in part: “I did not notice the bread wagon until it started to pull across the highway, but I noticed it when it started pulling directly across the highway over to the left. At that time Mr. Stevens was driving about 15 or 20 miles an hour. He did blow his horn. The driver of the truck was pulling directly across, and when Mr. Stevens blew his horn — he blew it more than once — but after he had blown his horn the driver of the truck looked out like that *317(illustrating) and saw us, because I saw bis face distinctly; tben be pulled right on across tbe highway to the left. There was just a lot on the left-hand side of the highway as far as I know. He had already seen us coming, because I saw his face. The truck pulled across the highway, and when it pulled across the highway the way was clear in front. The next thing I knew about the truck it was suddenly in front of us, and we either had to hit it or . . . It was going across the last time, coming back to the right. It had already crossed to the left and was coming back across the highway. Mr. Stevens’ car could not have been more than five feet from the truck when it came across the road. Mr. Stevens turned his ear suddenly to keep from hitting the truck, abruptly to the right. Pardon me; I am trying to tell it just as I saw it. The ear came back so close and so suddenly that he could not do anything but hit him or go off.”

Mrs. G. P. Sherrill testified in part as follows: “I was sitting east of the depot, and there was not a thing to obstruct my vision down to the garage there. I saw his car and then the truck coming down the highway, coming from the direction west going in the direction east, and I saw this Valdentian Bakery truck. It suddenly pulled to the left-hand side of the highway, and this car was coming on the right-hand side; and as the truck pulled to the left-hand side of the highway, it turned directly in front of this car, and the car run off of the embankment at the garage at Glen Alpine. ... It seems to me that the truck looked like it pulled all the way off the highway, and it suddenly turned directly across the highway in front of this car. The Stevens’ ear at that time was on the highway on the right-hand side and it pulled right in front of this car. It did not come back to the left. ... As far as I remember, and as far as I could see, Stevens’ car had not left the highway at all until the truck' came suddenly in front of him. . . . I said it seemed to me that it got all the way off the road — off of the hard surface and then turned suddenly across in front of this car on the highway.”

At the close of the plaintiff’s evidence, defendants moved for judgment as in ease of nonsuit. 0. S., 567. Motion allowed. Plaintiff excepted, assigned error and appealed to the Supreme Court.

*J. Scroop Styles for plaintiff.*

*S. J. Ervin and S. J. Ervin, Jr., for defendants.*

ClaeksoN, J.

C. S., 2617, in part, is as follows: “Whenever a person operating a motor vehicle shall meet on the public highway any other person riding or driving a horse or horses or other draft animals, or any other vehicle, the person so operating such motor vehicle and the person *318so riding or driving a horse, horses, or other draft animals, shall reasonably turn the same to the right of the center of such highway so as to pass without interference. Any person so operating a motor vehicle shall, on overtaking any such horse, draft animal, or other vehicle, pass on the left' side thereof, and the rider or driver of such horse, draft animal, or other vehicle shall, as soon as practicable, turn to the right so as to allow free passage on the left.”

Plaintiff’s testimony is conflicting in some respects, but the credibility is for the jury. *Shell v. Roseman,*155 N. C., at p. 94; *Shaw v. Handle Co.,*188 N. C., at p. 236. ¥e think under the plaintiff’s evidence, in the light most favorable to him, the issues of negligence, contributory negligence and damages, should have been submitted to the jury. *Dreher v. Devine,*192 N. C., 325, is not controlling under the facts in the present ease.

As to proximate cause, see *DeLaney v. Henderson,*192 N. C., at p. 651; *Radford v. Young,*194 N. C., 747. As to sudden danger or emergency, see *Riggs v. Mfg. Co.,*190 N. C., at p. 260; *Fowler v. Underwood,*193 N. C., 402; *Odom v. R. R.,*193 N. C., 442.

Plaintiff’s cause of action arose prior to Motor Vehicle Uniform Act, Public Laws of N. C., 1927, ch. 148, where the “Rules of the Road” are set forth. See, also, the North Carolina Code of 1927 (Michie), sec. 2621(44) *et seq.*For the reasons given, the nonsuit is

Reversed.