Cook v. . Horne

BeogkgN, J. The judgment of nonsuit was apparently entered upon the theory that plaintiff was operating his car in violation of C. S., 2621(55), in that he was attempting to pass another vehicle proceeding in the same direction upon the crest of a grade or upon a curve in the highway, and in so doing had driven to the left side of the center line on the highway upon such curve. Th§ evidence of plaintiff, however, was to the effect that there was a slight curve 75 or 80 feet beyond the point where the white line or mark commenced. Hence it was contended for the plaintiff that there was no violation of the statute. Moreover, the rights of the parties are not to be determined upon the facts and circumstances disclosed by the record, solely upon the theory that the plaintiff is barred of recovery as a matter of law by reason of crossing the white line before the act of passing was completed. The evidence discloses that the defendant was operating his automobile in violation of C. S., 2615, in that the same was being driven at night without *741 lights. The act of defendant in so operating bis automobile was negligence per se. This state of facts raises the question of proximate cause wbicb should have been submitted to the jury under proper instructions from the court. DeLaney v. Henderson-Gilmer Co., 192 N. C., 647, 135 S. E., 791; Franklin v. R. R., 192 N. C., 717, 135 S. E., 874; Radford v. Young, 194 N. C., 747, 140 S. E., 806; Whitaker v. Car Co., 197 N. C., 83. Reversed.