#### LESLIE ADAMS, by His Next Friend, MRS. MARY ADAMS, v. BLUE BIRD TAXIS, INC., and D. W. BLANKENSHIP.

(Filed 17 March, 1937.)

Automobiles § 18g — Evidence held insufficient to discharge plaintiff’s burden of identifying defendant’s car as the one causing the injury.

Evidence that many automobiles were passing on the street at the time of the accident, and that the automobile owned by one defendant and operated by the other was on the street near the place of the accident after the accident occurred, without further evidence identifying the automobile as the one which struck the bicycle which plaintiff was riding, *is held*insufficient to resist defendants’ motions *to*nonsuit, the burden being upon plaintiff to affirmatively establish the truth *of*his allegations.

Appeal by defendants from *Phillips, J.,*at November Term, 1936, of BttNcoMbe.

Beversed.

This is an action to recover damages for personal injuries suffered by the plaintiff, and caused, as alleged in the complaint, by the negligence of the defendants.

The action was begun and tried in the general county court of Buncombe County.

At the trial, issues arising upon the pleadings were submitted to the jury and answered as follows :

“1. Was the plaintiff injured by the negligence of the defendants, as alleged in the complaint? Answer: ‘Yesd

“2. Did the plaintiff by his own negligence contribute to his injuries as alleged in the answer? Answer: No.’

*325“3. Wbat amount, if any, is tbe plaintiff entitled to recover of tbe defendants ? Answer: ‘$1,450.’ ”

From judgment that plaintiff recover of tbe defendants tbe sum of $1,450 and tbe costs of tbe action, tbe defendants appealed to tbe judge of tbe Superior Court of Buncombe County, assigning numerous errors in tbe trial.

At tbe bearing of defendants’ appeal, tbeir assignments of error were not sustained. Tbe judgment of tbe general county court was affirmed by tbe judge of tbe Superior Court. Tbe defendants appealed to tbe Supreme Court, assigning as errors tbe rulings of tbe judge of tbe Superior Court and bis judgment affirming tbe judgment of tbe general county court.

*Carl W. Greene and Zeb V. Nettles for plaintiff.*

*Weaver ■& Miller and J. G. Cheesborough for defendants.*

CoNNOn, J.

A careful reading of the record in this appeal fails to disclose any evidence at the trial in the general county court of Buncombe County, tending to show the injuries which the plaintiff suffered when be was struck by an automobile, while riding on a bicycle on a public street in the city of Asbeville, were caused by the defendants or by either of them. Neither the plaintiff, who testified as a witness in bis own behalf, nor James Lowe, who testified that be was riding on the bicycle with the plaintiff when be was struck by an automobile and thrown from the bicycle to the street, identified the automobile owned by the defendant Blue Bird Taxis, Inc., and driven by the defendant D. "W. Blankenship, as the automobile which struck the plaintiff. the accident occurred about 10 o’clock at night, and at that time many automobiles were passing on the street where the accident occurred. the presence of defendants’ automobile on the street near the place of the accident, after the accident occurred, did not alone support ’an inference that said automobile bad struck the plaintiff and caused him to be thrown to the street. All the evidence tended to show that defendants’ automobile arrived on the scene after the accident.

The plaintiff failed to sustain the burden which the law imposed upon him to establish by evidence at the trial — the truth of bis allegations.

There was error in the ruling of the judge on defendants’ assignment of error based upon their exception to the refusal of the trial court to dismiss the action by judgment of nonsuit. This assignment of error should have been sustained. The judgment is reversed and the action remanded to the Superior Court of Buncombe County, that judgment may be entered in said court in accordance with this opinion.

Reversed.