The first assignment is to the refusal to sustain defendant’s motions -to nonsuit.
He waived his motion made at the conclusion of plaintiff’s evidence by offering evidence. G.S. 1-183.
The argument in support of the motion made at the conclusion of all the evidence is thus stated in defendant’s brief: “The physical facts at the scene of the collision speak louder than the testimony of plaintiff and his witnesses, and upon this basis the defendant was entitled to judgment as of nonsuit.”
The physical facts on which defendant relies are depicted in the evidence offered by defendant. His evidence tends to show (1) plaintiff applied his brakes with sufficient force to make them squeal; (2) after the collision, skid marks were found on the pavement extending from the truck 66 feet to the north; (3) the Plymouth left no skid marks; (,4i)- following the collision defendant’s car traveled more than 100 feet where it struck a tree on the west side of the highway. De*719fendant contends he was knocked that distance by the violent impact; plaintiff says he traveled that distance by virtue of his own momentum.
Defendant cites and relies on Atkins v. Transportation Co., 224 N.C. 688, 32 S.E. 2d 209, in support of his motion. The distinction between that case and the case at bar is readily apparent. There, admittedly, plaintiff’s truck was following defendant's bus very closely ■ — ■ so closely that plaintiff could not stop in the distance separating the vehicles. Here, if the jury accepted plaintiff’s version of the facts, the short distance separating the vehicles was caused by defendant’s act in passing and cutting in ahead of plaintiff. There, plaintiff was not confronted with oncoming traffic; he could have turned to his left and prevented the collision. Here, no such choice was open to plaintiff — according to his evidence a vehicle was approaching from .the south. There, the physical facts were usedi to amplify and explain plaintiff’s evidence. Here, defendant frankly suggests using his desci’iption of the physical facts, with his interpretation of those facts to rob the evidence of plaintiff and his witnesses of probative force. The evidence for plaintiff and defendant painted different pictures. This disagreement with respect to the facts required a submission of appropriate issues to the jury. Beauchamp v. Clark, 250 N. C. 132; Jernigan v. Jernigan, 236 N. C. 430, 72 S. E. 2d 912; Winsfield v. Smith, 230 N.C. 392, 53 S.E. 2d 251.
Defendant assigns as error the court’s statement directing attention .to two statutes relating to the operation of motor vehicles, which statement is followed by a delineation of the operator’s duty under G.S. 20-141 and 154. The contention is made that the court thereby unduly restricted the jury in answering the issue as -to contributory negligence. The assignment is without merit. The statement was not specifically directed to the second issue. It was merely a portion of the charge relating to the duties of any operator of a motor vehicle applicable to both the first and second issues. Other portions of the charge, without specifically referring to the statutes by number, accurately and adequately covered the field.
The assignment of error relating to the charge on the issue of contributory negligence is without merit. It gave defendant’s contention with respect to the facts and properly and adequately described plaintiff’s duty in the operation of his vehicle. The jury were told that a failure on plaintiff’s part to perform his duty, thereby proximately contributing to the collision and damages, would require an affirmative answer.
*720The charge covered the questions at issue and correctly applied the law thereto.
No error.
HiggiNS, J., not sitting.