There are a number of exceptions appearing on the record, but we deem it unnecessary to consider them seriatim as rulings upon the following will suffice to dispose of the present appeal.
First: Was it error for the court to instruct the jury that if the driver of defendant’s truck failed to stop at the “S T O P” sign on Benbow Road before entering the intersection with Washington Street, a through highway, “under the law that would be negligence per se, or negligence in itself”? The law as presently written answers the question in the affirmative.
It is provided by ch. 407, Public Laws 1937, sec. 120, that the State Highway Commission with reference to State highways, and local authorities with reference to highways under their jurisdiction, may designate main traveled or through highways by erecting at the entrance thereto, from intersecting highways, signs notifying drivers of vehicles to come to a full stop before entering or crossing such designated highway, “and whenever any such signs have been so erected it shall be unlawful for the driver of any vehicle to fail to stop in obedience thereto. That no failure so to stop, however, shall be considered contributory negligence per se in any action at law for injury to person or property; but the facts relating to such failure to stop may be considered with the other facts in the case in determining whether the plaintiff in such action was guilty of contributory negligence.”
If the failure to come to a full stop before entering or crossing a through highway in obedience to any such sign duly erected is not to be considered contributory negligence per se on the part of a plaintiff in any action at law for injury to person or property, but only evidence of such negligence, we think it follows as a necessary corollary or as the rationale of the statute, that where the party charged is a defendant in any such action, the failure so to stop is not to be considered negligence per se, but only evidence thereof to be considered with other facts in the case in determining whether the defendant in such action is guilty of negligence. 1937 Supp. to N. C. Code of 1935 (Michie), sec. 2621 (305); Keller v. R. R., 205 N. C., 269, 171 S. E., 73. Indeed, it may not be inappropriate to say that in an action at law for injury to person or property, the plaintiff therein becomes defendant, pro hac vice, upon the issue of contributory negligence. There is really no distinction, or essential difference, between negligence in the plaintiff and negligence in the defendant, except that in an action like the present, the negligence of the plaintiff is called contributory negligence. Liske v. Walton, 198 N. C., 741, 153 S. E., 318. The criterion for establishing both is the *774same. Moore v. Iron Works, 183 N. C., 438, 111 S. E., 776. The same standard applies alike to both. Pearson v. Luther, 212 N. C., 412. Hence, according to the rule of equality, if a given act is not to be regarded as contributory negligence per se on the part of a plaintiff in any action at law for injury to person or property, the same act ought not to be regarded as negligence per se on the part of a defendant in any such action. See Smith v. R. R., 200 N. C., 177, 156 S. E., 508; S. v. Satterfield, 198 N. C., 682, 153 S. E., 155; Weston v. R. R., 194 N. C., 210, 139 S. E., 237; Kimbrough v. Hines, 180 N. C., 274, 104 S. E., 684. Nothing was said in Headen v. Transportation Co., 211 N. C., 639, 191 S. E., 331, which militates against this position. The question presently presented was not raised in the Headen case, supra. The rulings there are accordant herewith.
It will be observed that this exception is not concerned with section 103 of the Motor Yehicle Law, ch. 407, Public Laws 1937, which deals with speed restrictions and prima facie evidence arising from speeds in excess' of the restrictions therein set out. Woods v. Freeman, ante, 314.
Second: Is there error in the instruction, “according to this table of mortality . . . the age of Dr. Sebastian being 61 years, . . . his expectancy is 13,5 years”? It is not perceived wherein the instruction here challenged differs from the one held to be erroneous in Hubbard v. R. R., 203 N. C., 675, 166 S. E., 802, or the one disapproved in Trust Co. v. Greyhound Lines, 210 N. C., 293, 186 S. E., 320.
In the instant case, the court made definitive the age of the deceased, as well as his expectancy, and thus expressed an opinion as to the sufficiency of the proof of both facts. This runs counter to C. S., 564, which prohibits the judge from expressing any opinion as to “whether a fact is fully or sufficiently proven.” Cogdill v. Hardwood Co., 194 N. C., 745, 140 S. E., 732. The instruction was calculated appreciably to augment the recovery, which it undoubtedly did.
Third: Is there error in the instruction given in response to a request from the jury, that Dr. Sebastian “had a right to assume that any person operating a motor vehicle on Benbow Road would come to a stop before entering Washington Avenue”?
In the circumstances of the case, we are constrained to think that this instruction may have misled the jury in its consideration of the second issue.
It is true, there are expressions in a number of cases seemingly in support of the charge, notably Hancock v. Wilson, 211 N. C., 129, 189 S. E., 631; Jones v. Bagwell, 207 N. C., 378, 177 S. E., 170; Cory v. Cory, 205 N. C., 205, 170 S. E., 629; and Shirley v. Ayers, 201 N. C., 51, 158 S. E., 840, and ordinarily the instruction might not be objectionable, but here, there is evidence tending to show that the truck “had nearly passed through the intersection” before the deceased reached it, *775and then be undertook to pass in front of tbe moving truck by turning to bis left. Powers v. Sternberg, ante, 41. Wbetber tbis was in keeping witb tbe exigencies of tbe occasion should bave been submitted to tbe jury on tbe issue of contributory negligence. Meacham v. R. R., ante, 609.
Notwithstanding Dr. Sebastian’s right to expect compliance witb tbe law on tbe part of tbe driver of defendant’s truck, Quinn v. R. R., ante, 48, still tbis did not lessen bis own obligation to conform to tbe rule of tbe reasonably prudent man, which was still required of him. Meacham v. R. R., supra; Powers v. Sternberg, supra.
Tbe case is an important one. Both sides are greatly interested in tbe result. A painstaking investigation of tbe record leaves us witb tbe impression that tbe above instructions, assigned as errors, weighed too heavily against tbe defendant.