BARNHILL, J., dissenting.

WINBORNE and DENNY, JJ., concur in dissent.

Civil action to recover for personal injury and property damage resulting from a collision between plaintiff's motorcycle and defendant's truck.

Plaintiff's evidence tends to show that on 7 October, 1949, in a rear-end collision between the motorcycle of plaintiff and the pickup truck of defendant, plaintiff sustained a compound fracture of his leg resulting in serious permanent injury. His motorcycle caught fire and was practically destroyed. The collision happened between Morganton and Valdese in a curve on Highway 70, which highway is 18 feet hard surface with 3 feet shoulders. The road was under repair. Several barricades were across the right-hand portion some distance to the east and to the west of the point of collision. The barricade nearest the point of collision had been placed there after plaintiff had passed that point about noon going to Morganton. Plaintiff and defendant were both traveling in an easterly direction toward Valdese, plaintiff behind the defendant. It had been raining and at the time was dark, foggy and drizzling rain. Plaintiff's vision was impaired by approaching cars, the lights of which were "shining high" making it difficult for him to see the road ahead. His motorcycle was in good condition, his lights and brakes in good working order, and he was driving with his lights dimmed.

At a distance of 175 feet before reaching the barricade ahead, defendant stopped her truck suddenly directly in front of plaintiff without giving either hand or mechanical signal or otherwise indicating her intention to stop. She had no tail light burning and no brake light in operation. Plaintiff applied his brakes and turned to the right in an effort to miss the truck, but some part of the rear bumper of the truck caught his motorcycle, crushing his leg. His motorcycle stopped with the rear wheel on the hard surface and the front wheel in the edge of the ditch. Plaintiff could not cut to the left because of approaching traffic. On the next day in the sheriff's office the defendant admitted to Patrolman O'Kelly and to plaintiff's father that "the wreck was her fault; that she had no tail lights and that she would take care of it and pay the charges."

Plaintiff testified: "I was traveling 15 to 20 miles per hour. . . . When I started around, getting into the curve, I was about 50 feet from the truck, and I got half way around the curve. . . . I had got up to within 30 feet of her before I thought she would stop. . . . She stopped right suddenly. . . . I did not notice anything stopped until I got close to it and I did not have time to swerve around and I tried to cut around, and I had my brakes on, and not going over 15 miles when going around that side and the front wheel got by and the rear, something caught in the left side bumper and my leg caught and crushed between it and the bumper. I nearly got around her on her right side. We were both going in the same direction. The reason I did not turn out on the left side was a bunch of cars coming meeting me and I was liable to run straight into those cars; the cars were coming with their lights shining up high and that made it hard for me to see in front. . . . I could not see well because of the approaching lights shining up. . . . My motorcycle is made so I can dim my lights and I had them on dim. I do not know whether the lights approaching me were on dim or not, but they were shining up high. . . . She had no tail lights and gave no hand signal. . . . The lights and brakes on my motorcycle were in good shape and the brakes were working."

At the close of plaintiff's evidence, a nonsuit was predicated upon the contributory negligence of the plaintiff. From this ruling the plaintiff appealed, assigning errors.

VALENTINE, J.

The question on this appeal is the correctness of the ruling below allowing the defendant's motion for judgment of nonsuit. Defendant offered no evidence, but plaintiff's evidence made out a case of actionable negligence against her. Therefore, if the judgment of the court below is sustained, it must be upon the basis that plaintiff's own evidence proved as a matter of law that he was guilty of contributory negligence. Upon a motion for nonsuit the plaintiff is always entitled to have the evidence which tends to support his position considered in the light most favorable to him. He is entitled to the benefit of every inference and intendment which reasonable minds can logically draw from his evidence. Nash v. Royster, 189 N.C. 408, 127 S.E. 356.

Unquestionably, there was abundant evidence tending to show negligence on the part of defendant. She drove her truck on a wet slippery highway in a drizzle of rain and in a heavy fog without tail lights or brake lights while meeting heavy traffic with glaring lights. She stopped her truck suddenly and without warning in the path of the plaintiff. The evidence tended to show not only a failure of defendant to observe the rules of the prudent man under the circumstances, but also showed a violation of statutes regulating the operation of motor vehicles on the highways. G.S. 20-129; G.S. 20-154. Evidence of such conduct on the part of defendant was sufficient to raise a jury question upon defendant's negligence. Joyner v. Dail, 210 N.C. 663, 188 S.E. 209; Tarrant v. Bottling Co., 221 N.C. 390, 20 S.E.2d 565; Conley v. Pearce-Young-Angel Co., 224 N.C. 211, 29 S.E.2d 740.

The burden of proving contributory negligence rests upon the defendant. By her motion for nonsuit, defendant contends that from plaintiff's evidence there was sufficient showing of contributory negligence to preclude his recovery. This calls for the application of the rule that judgment of nonsuit on the ground of contributory negligence should not be granted unless the evidence of plaintiff, taken in the light most favorable to him, establishes such negligence so clearly that no other reasonable inference or conclusion may be drawn therefrom. Dawson, v. Transportation Co., 230 N.C. 36, 51 S.E.2d 921; Winfield v. Smith, 230 N.C. 392, 53 S.E.2d 251; Atkins v. Transportation Co., 224 N.C. 688, 32 S.E.2d 209; Hampton v. Hawkins, 219 N.C. 205, 13 S.E.2d 227; Hobbs v. Drewer, 226 N.C. 146, 37 S.E.2d 121; Cole v. Koonce, 214 N.C. 188, 198 S.E. 637; Manheim v. Taxi Corp., 214 N.C. 689, 200 S.E. 382.

With respect to a nighttime collision, this Court has said: "The duty of the nocturnal motorist to exercise ordinary care for his own safety does not extend so far as to require that he must be able to bring his automobile to an immediate stop on the sudden arising of a dangerous situation which he could not reasonably have anticipated. Any such requirement would be tantamount to an adjudication that it is negligence to drive an automobile on a highway in the nighttime at all. . . . It is a well established principle in the law of negligence that a person is not bound to anticipate negligent acts or omissions on the part of others; but in the absence of anything which gives or should give notice to the contrary, he is entitled to assume and to act upon the assumption that every other person will perform his duty and obey the law and that he will not be exposed to danger which can come to him only from the violation of duty or law by such other person." Chaffin v. Brame, 233 N.C. 377, and cases there cited.

In examining the evidence in the instant case in the light of the applicable principles of law, we have this factual situation: On the evening of 7 October, 1949, the defendant was operating a pickup truck in an easterly direction along Highway 70 around a curve between Morganton and Valdese. It was after dark in the evening, had been raining and at the time was drizzling rain and very foggy. The hard surface highway was slick. The road was undergoing repairs and some barricades had been placed along the southern half of the highway, but there were no barricades for a considerable distance in front and behind defendant's truck. Defendant had no tail lights burning and no brake light in operation. Plaintiff was riding his motorcycle in the same direction behind defendant's truck. At the point of collision, a number of automobiles with "lights shining high" were meeting plaintiff and defendant. The lights of the oncoming cars did not completely blind plaintiff, but interfered with his vision so that he could not see the road ahead clearly. When plaintiff got within 30 feet of defendant, she suddenly and without warning of any kind stopped her truck on the highway directly in front of plaintiff, a distance of 175 feet before she reached the barricade ahead. Plaintiff applied his brakes, which were in good condition, and turned to the right in an effort to miss defendant's truck. He nearly got around the truck, but the back portion of his motorcycle caught the right end of the rear bumper of defendant's truck in such a way as to crush and break his leg, thereby seriously and permanently injuring him. His motorcycle came to rest with the front wheel in the edge of the ditch and the rear wheel still on the hard surface portion of the highway. Plaintiff could not turn to the left because of defendant's position on the highway and the presence of oncoming traffic. He dimmed his lights in recognition of the rights of approaching motorists. There was no evidence that plaintiff drove his motorcycle at any time at a rate of speed greater than 15 or 20 miles per hour. The hard surface portion of the highway was 18 feet with 3 feet shoulders on each side. Plaintiff applied his brakes, but a complete application of the brakes upon a wet road may have produced more disastrous results. Defendant admitted full responsibility without attributing any negligence to the plaintiff.

In these circumstances requiring instant action, the plaintiff according to his testimony did not have sufficient time to meditate and deliberate on the course of action necessary for best results, and in judging his conduct consideration must be given to the sudden emergency with which he was confronted. He should not be held to the same deliberations or circumspection as are required in ordinary conditions. Hinton v. R. R., 172 N.C. 587, 90 S.E. 756. "The standard of conduct is that of the prudent man under like circumstances. According to plaintiff's testimony the emergency was created by the negligent conduct of the defendants. Under these circumstances the rule is stated in Ingle v. Cassady, 208 N.C. 497, 181 S.E. 562, as follows: `One who is required to act in emergency is not held by the law to the wisest choice of conduct, but only to such choice as a person of ordinary care and prudence, similarly situated, would have made.'" Winfield v. Smith, supra; Butner v. Spease, 215 N.C. 82, 6 S.E.2d 808; Beck v. Hooks, 218 N.C. 105, 10 S.E.2d 608; Sparks v. Willis, 228 N.C. 25, 44 S.E.2d 343; Wall v. Bain, 222 N.C. 375, 23 S.E.2d 330.

The plaintiff cannot be charged with contributory negligence as a matter of law merely because he did not stop when the high shining lights of oncoming traffic partially blinded him and interfered with his vision of the road ahead. This principle has been fully recognized and applied in this jurisdiction. Cummins v. Fruit Co., 225 N.C. 625, 36 S.E.2d 11; Leonard v. Transfer Co., 218 N.C. 667, 12 S.E.2d 729; Cole v. Koonce, supra; Williams v. Express Lines, 198 N.C. 193, 151 S.E. 197; Clarke v. Martin, 215 N.C. 405, 2 S.E.2d 10. Whether the plaintiff could have avoided the collision and its resulting injury or whether his conduct was different from that of any reasonably prudent man in the same or similar circumstances are questions about which reasonable minds may honestly differ. We cannot say as a matter of law that the single inference of contributory negligence and no other may be drawn from plaintiff's evidence.

Therefore, the judgment of the court below is

Reversed.