(Filed 27 January, 1932.)
Appeal by plaintiff from Sink, J., at April Special Term, 1931, of DavidsoN.
Reversed.
This is an action for actionable negligence brought by plaintiff against defendant. Tbe allegations of tbe complaint, in part, are as follows: “That on or about 11 October, 1929, tbe plaintiff was riding a bicycle upon Salem Street in tbe city of Tbomasville, and was proceeding in a careful, prudent and lawful manner - in a southern direction along said street, observing all rules and regulations and ordinances required; that tbe defendant, Clifton Ro-throck, was operating tbe said Chevrolet coach of tbe defendant, P. D. Rothrock, as bis agent, servant or employee, and with bis consent, in a northern direction along said Salem Street; in a careless, reckless, negligent and unlawful manner; that as tbe plaintiff bad entered into tbe intersection of East Guilford Street with tbe said Salem Street some few feet, tbe defendant, Clifton Roth-rock, carelessly, negligently, recklessly and unlawfully ran into, struck and knocked tbe plaintiff from tbe said bicycle be was riding, and knocked tbe plaintiff and bis bicycle back several feet and into tbe curb of East Guilford Street. That tbe said automobile was being operated by tbe defendant in a careless, reckless, negligent and unlawful'manner in that: (a) Tbe same was being operated at a rapid and unlawful *824rate of speed, and in excess of that allowed by law; (b) in that a left-hand turn into "West Guilford Street was being made without any signal or warning being given to the plaintiff; (c) in that the same was being operated without proper signaling device; (d) in that the same was being operated without being equipped with proper brakes; (e) in that the defendants failed and refused to keep to the right of the center of the street intersection as required by law: (f) in that the defendant failed and refused to yield to the plaintiff his right of way as provided by law; (g) in that the defendants failed and refused to use the last clear chance to avoid striking the plaintiff and bicycle upon which he was riding. All of which acts of carelessness and negligence on the part of the defendants were the sole, proximate and direct cause of the injury received by the plaintiff, and the damage done to the bicycle as hereinafter set out.”
The defendants denied the material allegations of the complaint and that they were guilty of any negligence, and further allege that the automobile was operated by defendant Clifton Rothrock “in a careful and lawful manner and with due regard to the safety and rights of others.” (a) That the same was being operated at a slow and lawful rate of speed, and not in excess of that allowed by law; (b) that the-left-hand turn into West Guilford Street was being made by signal and warning to anyone who might be in the rear or in the front of the said defendant; (c) that at this particular time, the car was equipped with the proper signaling device; (d) that the time of the said accident the same was being operated and equipped with good and sufficient brake; (e) that the defendant kept to the right of the street intersection as was required of him by. law; (f) that at the time of the said accident, the defendant, Clifton Rothrock, had already made a left-hand turn into West Guilford Street, and the front part of the car had entered into said West Guilford Street before the plaintiff came near the intersection.” The defendant also set up the plea of contributory .negligence.
H. R. Kyser for plaintiff.
Ford Myers and Phillips & Bower for defendants.
Per Curiam.
At the close of plaintiff’s evidence the defendants made a motion in the court below for judgment as in case of nonsuit. C. S., 567. The motion was granted and in this we think there was error.
We have read with care the evidence of plaintiff and think it sufficient to be submitted to a jury. We will not-set it forth or discuss the law, as the case goes back to be heard before a jury. There must be a
New trial.