On his appeal to this Court, the defendant J. O. Downing does not contend that there was no evidence at the trial of this action tending to show that the collision which resulted in injuries to both the plaintifE and the defendant James A. Boyce was caused by his negligence, as alleged in the complaint and in the answer of the defendant James A. Boyce. He concedes in the brief filed by his counsel, in effect at least, that all the evidence shows that at the time of the collision he was driving the automobile in which the plaintiff was riding as a passenger, and which collided with the automobile which the defendant James A. Boyce was driving, at a rate of speed greatly in excess of forty-five miles per hour, and that there was evidence tending to show that such violation of the statute, C. S., 2626 (46), was at least a proxi*222mate cause of the collision, and the resulting injuries suffered by the plaintiff and by the defendant James'A. Boyce.
In support of his assignments of error with respect to the judgment recovered against him by the plaintiff, the defendant contends that all the evidence at the trial shows that at the time of the collision the plaintiff was engaged in a joint enterprise with him, that by his own negligence the plaintiff contributed to his injuries, and that when he entered the plaintiff’s automobile as a passenger he assumed the risk of a collision on the highway with another automobile. These contentions are in support of defenses to plaintiff’s recovery in this action, which are set up in defendant’s answer, and cannot be sustained, for the reason that there is at least a conflict in the evidence as to the facts involved in these defenses. It cannot be held that all the evidence shows that plaintiff, while riding with the defendant as a passenger in defendant’s automobile, had the right to control or did control the driving of said automobile. See Jernigan v. Jernigan, 207 N. C., 836, 178 S. E., 587. Nor can it be held that all the evidence shows that by his own negligence the plaintiff contributed to his injuries, see C. S., 523, or that he assumed the risk of a collision caused by the negligence of the defendant, as shown by all the evidence at the trial. See Norfleet v. Hall, 204 N. C., 573, 169 S. E., 143.
Where, in an action to recover damages for injuries caused by the alleged negligence of the defendant, the defendant not only denies all allegations of negligence in the complaint, but also pleads in his answer defenses available to him in bar of plaintiff’s recovery in the action, the burden is on the defendant to sustain the defenses pleaded by him. It follows from this principle that where there is evidence at the trial tending to sustain the allegations of the complaint, the defendant is not entitled to a judgment as of nonsuit, unless all the evidence, considered in the light most favorable to the plaintiff, sustains defenses relied upon by the defendant in bar of plaintiff’s recovery.
In support of his assignments of error with respect to the judgment recovered against him by the defendant James A. Boyce, the defendant contends that all the evidence shows that the injuries suffered by said defendant were caused by his own negligence, or at least that said defendant by his own negligence contributed to the injuries suffered by him as the result of the collision. These contentions cannot be sustained. The evidence pertinent to the defenses relied on by the defendant in bar of a recovery in this action by his codefendant was properly submitted to the jury. If the jury believed the testimony offered as evidence by the defendant James A. Boyce, as they evidently did, the said defendant was not negligent in turning his automobile from the highway into the side road. He gave timely warning of his purpose to *223do so, and in that ease, tbe collision, and bis resulting injuries, were caused by tbe negligence of tbe defendant J. C. Downing, as found by tbe jury.
After a careful review of tbe evidence in tbis case, we are of opinion tbat tbe assignments of error relied on by tbe defendant J. C. Downing on bis appeal to tbis Court cannot be sustained.
No error.
Devin, J., took no part in tbe consideration or decision of tbis case.