[1] Defendant contends the trial court erred in permitting the witnesses Vickie and Wayne Dunn to state opinions as to the speed of defendant’s automobile as it approached the intersection where the collision occurred. We find no merit in this contention. While the period of time that they observed defendant’s approaching automobile was brief, we think it was of sufficient duration for them to form opinions as to speed. State v. Clayton, 272 N.C. 377, 158 S.E. 2d 557 (1968). Furthermore, when the opinions of the witnesses that defendant was “exceeding” 35 m.p.h. is considered along with defendant’s testimony that he “was running around 35 miles per hour,” we can perceive no prejudice to defendant.
[2] Defendant contends the trial court erred in denying his motions for nonsuit. We consider only the motion interposed at the conclusion of all the evidence, 3 Strong, N. C. Index 2d, Criminal Law § 176, and hold that the evidence was sufficient to survive the motion.
To survive the motion for nonsuit, the State had the burden of showing culpable negligence on the part of defendant, and that such negligence proximately caused the death of Mrs. Freeze. Defendant raises no question regarding proximate cause but strenuously argues the absence of proof of culpable negligence. The established law in this jurisdiction with respect to culpable negligence is well summarized in 1 Strong, N. C. Index 2d, Automobiles § 110, as follows:
“Culpable negligence in the law of crimes is something more than actionable negligence in the law of torts, and is such recklessness or carelessness, proximately resulting *656in injury or death, as is incompatible with a proper regard for the safety or rights of others.
“The violation of a safety statute regulating the use of highways does not constitute culpable negligence unless such violation is intentional, wilful, or wanton, or unless the violation, though unintentional, is accompanied by recklessness or is under circumstances from which death or injury to others might have been reasonably anticipated. But the inadvertent or unintentional violation of a safety statute, standing alone, does not constitute culpable negligence.” (Emphasis added.)
When the evidence presented in the instant case is considered in the light most favorable to the State, we think it was sufficient to take the case to the jury.
Defendant contends the trial court erred in its instructions to the jury. We think this contention has merit and that the errors were sufficient to entitle defendant to a new trial.
In its instructions the court charged on the theory that the evidence established prima facie that defendant (1) was driving faster than was reasonable and prudent under existing conditions, a violation of G.S. 20-141 (a), and (2) drove into the intersection without stopping in obedience +o a duly erected stop sign, in violation of G.S. 20-158. While we agree that the evidence tended to show a stop sign violation, we do not think the evidence was sufficient to show a violation of G.S. 20-141 (a).
[3] The record reveals that on the night in question Winona Street, for approximately three-tenths of a mile before it intersected with C Street, was comparatively straight and flat and that the night was clear and dry with a temperature of about 70 degrees. There were no traffic or streetlights at the intersection. Most of the evidence regarding Winona Street was provided by defendant who testified that he entered that street at a point more than five-tenths of a mile from the intersection; that he traversed a series of curves within the first two-tenths of a mile traveled; but thereafter the road straightened and ran true for more than three-tenths of a mile before intersecting with C Street. There was no evidence as to the posted speed limit and His Honor properly charged that the jury would have to assume the legal limit was 55 m.p.h. Defendant testified, as did witnesses for the State, that his speed just prior to impact *657was approximately 35 m.p.h. There was no other evidence as to speed or road conditions and the investigating officer indicated a lack of familiarity with the area. This evidence affords no sound basis for instructions on violation of G.S. 20-141 (a). State v. Weston, 273 N.C. 275, 159 S.E. 2d 883 (1968). It was error to submit a case to the jury on a theory not supported by the evidence. State v. Hollingsworth, 263 N.C. 158, 139 S.E. 2d 235 (1964).
The trial court’s mandate to the jury included the following:
“So I charge that if you find from the evidence beyond a reasonable doubt that on or about October 7, 1973, at about 7:55 p.m., Timithy Ray Gainey intentionally or recklessly drove his motor vehicle at a speed that was greater than reasonable and prudent under the conditions then and there existing, or drove his vehicle through a stop sign without braking his vehicle to a stop, thereby proximately causing the death of Carrie Freeze, and that the violation or violations did not result from brake failure on the defendant’s car, it would be your duty to return a verdict of guilty of involuntary manslaughter.” (Emphasis ours.)
[4] In addition to the reason stated above, we think the quoted instruction was erroneous for the additional reason that it could have left the impression with the jury that a mere violation of G.S. 20-158, proximately causing death, would warrant a conviction of involuntary manslaughter. Clearly this is not the law. See State v. Sealy, 253 N.C. 802, 804, 117 S.E. 2d 793, 795 (1961), holding that there must be “[a]n intentional, wilful or wanton violation of a statute or ordinance, designed for the protection of human life or limb which proximately results in injury or death . . .” to constitute culpable negligence.
For the reasons stated, defendant is awarded a
New trial.
Judge Arnold concurs.
Judge Vaughn dissents.