The challenge of defendant to the judgment entered in Superior Court raises for decision the question as to whether the evidence offered on the trial in the Municipal Court of the City of High Point, taken in the light most favorable to plaintiff, as we must do in-considering judgments as in ease of nonsuit, is sufficient to make out a ease of actionable negligence on the part of the defendant and to, require the submission to the jury of an issue with respect thereto.
In order to establish actionable negligence, “The plaintiff must show: First, that there has been a failure to exercise proper care in the performance of some legal duty which the defendant owed to plaintiff, under the circumstances in which they were placed; and, second, that such negligent breach of duty was the proximate cause of the injury— a cause that produced the result in continuous sequence and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such result was probable under all the facts as they existed.” Whitt v. Rand, 187 N. C., 805, 123 S. E., 84.
Applying this principle to the evidence in the present case in the light of the allegations of negligence set out in the complaint, we are of opinion and hold that the evidence fails to show a breach of legal duty on the part of the defendant within the purview of the allegations of the complaint.
As to the allegation that defendant was negligent in parking and leaving standing its truck on the paved portion of English Street in the City of High Point in the nighttime without lights: It is noted that the State-wide statute, Gr. S., 20-161, providing that “no person shall park or leave standing any vehicle upon the paved portion of any highway,” expressly directs its provisions to such portions of highways as are “outside of a business or residential district” as defined by statute. Hence, the parking or leaving standing of any vehicle in a business or residential district is not a violation of the State statute. And the evidence in the present case shows that English Street is a residential district. Moreover, there is no State-wide statute in this State that requires lights *18to be displayed oil vehicles parked in business or residential districts. Also, it is seen from the provisions of section 11 of the ordinances of the City of High Point, pertaining to lights at night on parked vehicles, introduced in evidence, that parking lights upon a vehicle, lawfully parked on a street in conformity with chapter G- of the ordinances of the City of High Point, are not required, except as specifically demanded by the city. In the present case there is no evidence that the city demands that vehicles parked at night on English Street be lighted.
Furthermore, with respect to the allegation that defendant parked its truck with the rear wheels standing more than 12 inches from the curb, in violation of section 8 of Article 5 of chapter Gr of the ordinances of the City of High Point: Is there evidence that the truck of defendant was parked in violation of this ordinance? We do not think there is. The only evidence as to how the truck was parked with respect to the curb, before the collision in question, comes from the driver of the automobile in which plaintiff’s intestate was riding. And he testifies, “I saw the truck just as I hit it. I hadn’t seen it before I hit it.” Moreover, an analysis of his testimony in regard to the position in which the truck of defendant was parked in relation to the curb, shows that he speaks of the position after the collision. And all the evidence tends to show that the force of the impact when the truck was hit by the automobile in which plaintiff’s intestate was riding, moved the truck, and forced it over the curb and upon the sidewalk. In this connection it is also noted that the evidence tends to show that the rear end of the trailer was about eight feet wide, — and the driver of the automobile gives as his opinion that “the rear tire of the truck was out in the street at least 8 feet.”
And it is not negligence on the part of a municipality to have shade trees along its streets. Ferguson v. Asheville, 213 N. C., 569, 197 S. E., 146, citing Rollins v. Winston-Salem, 176 N. C., 411, 97 S. E., 211. Hence, no duty in respect thereto rested upon defendant in parking the truck upon such street.
While the case presents a deplorable, tragic and untimely ending of a young life, the evidence is insufficient to support a finding that it was proximately caused by the parking of the truck of defendant. Other causes are apparent.
The judgment of Superior Court is
Reversed.