
74 S.E.2d 762 (1953)
237 N.C. 291
GOODSON
v.
WILLIAMS.
No. 89.
Supreme Court of North Carolina.
March 4, 1953.
*764 W. W. Candler and Cecil C. Jackson, Asheville, for plaintiff, appellant.
Harkins, Van Winkle, Walton & Buck, Asheville, for defendant, appellee.
DENNY, Justice.
This appeal raises two questions: (1) Did the plaintiff offer sufficient evidence of actionable negligence on the part of the defendant to carry the case to the jury? (2) If so, does the evidence establish contributory negligence on the part of the plaintiff's intestate as a matter of law?
On a motion for judgment as of nonsuit, the plaintiff is entitled to have the evidence considered in the light most favorable to him and to the benefit of every reasonable inference to be drawn therefrom. Rice v. Lumberton, 235 N.C. 227, 69 S.E.2d 543; Powell v. Lloyd, 234 N.C. 481, 67 S.E.2d 664; Thomas v. Thurston Motor Lines, 230 N.C. 122, 52 S.E.2d 377; Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307; Pascal v. Burke Transit Co., 229 N.C. 435, 50 S.E.2d 534.
In passing upon a motion for judgment as of nonsuit when in our opinion the motion was erroneously granted in the court below, a discussion of the evidence should be omitted, except as deemed essential, so as not to prejudice either party on *765 the further hearing. And in our opinion the defendant's motion for judgment as of nonsuit in the trial below should have been overruled.
A nonsuit on the issue of negligence should not be allowed unless the evidence is free from material conflict and the only reasonable inference that can be drawn therefrom is that there was no negligence on the part of the defendant, or that his negligence was not the proximate cause of the injury. Thomas v. Thurston Motor Lines, supra. Here we have the statement of the defendant to the effect that he met a car on the highway immediately before the accident occurred; that he dimmed his lights and "just as he started to brighten his lights, the subject, Mr. Goodson, darted in front of him, he applied the brakes and swerved the car to the center lane but was too near to avoid striking the subject." Later, however, in talking with the mother of the deceased, he said, "I just can't understand how I ever happened to do it." Further, the defendant's wife, in his presence, said to the mother of the deceased, "I don't know whatever possessed my husband to do it. He swerved to his right and when he did, it (the car) hit him. He was almost off the pavement."
We think a reasonable inference may be drawn from this evidence that the defendant was not keeping a proper lookout for the rights and safety of others who were or might have been on the highway, and that a reasonable inference may be drawn from his statement to the mother of the deceased and the unchallenged statements made to her, by his wife, in his presence, that the accident was not unavoidable but was the result of some act of omission or commission on his part. Furthermore, there is nothing in the statements made to the mother of the deceased from which it may be inferred that plaintiff's intestate darted in front of defendant's car, or was proceeding across the highway in a manner other than in a usual or normal way.
Moreover, there is nothing in the evidence tending to show that the defendant was blinded by the lights of the car he had just passed, and thereby prevented from being able to discern "a person seventy-five feet ahead," the distance required under normal atmospheric conditions and on a level road, when the lights are dimmed, as required by law. G.S. § 20-131(d).
However, what the evidence may be on another hearing, in rebuttal or denial of plaintiff's evidence, is not our concern. But we must accept as true the evidence as disclosed by the record in considering an exception to a judgment as of nonsuit. Bundy v. Powell, supra. In any event, we do not think that the statements made by the defendant to the State Highway Patrolman and to the mother of the deceased, and the statements made by his wife, in his presence, to the mother of the deceased, are susceptible only to the inference that the defendant was entirely free from negligence in connection with the death of plaintiff's intestate.
In the case of Williams v. Henderson, 230 N.C. 707, 55 S.E.2d 462, 463, the deceased, who lived on the north side of the highway, crossed the highway to go to her mail box. As she crossed the highway, two heavily loaded oil trucks were approaching from the west, traveling about 45 or 50 miles an hour. The first truck passed the deceased. As the second truck approached, deceased was standing at the mail box on the shoulder of the road, apparently oblivious of the approach of the second truck. When this truck was within 15 or 20 feet of the deceased, she turned suddenly and "started back across the highway in a fast walk." Defendant swerved his truck to the left in an attempt to avoid striking her but the rear-view mirror located on the right side struck her head and her body struck the corner of the truck to the rear of the cab. A motion for judgment as of nonsuit interposed by the defendant was allowed. The plaintiff appealed to this Court and in reversing the judgment, Barnhill, J., in speaking for the Court, said: "A motorist operates his vehicle on the public highways where others are apt to be. His rights are relative. Should he lapse into a state of carelessness or forgetfulness his machine may *766 leave death and destruction in its wake. Therefore, the law imposes upon him certain positive duties and exacts of him constant care and attention. He must at all times operate his vehicle with due caution and circumspection, with due regard for the rights and safety of others, and at such speed and in such manner as will not endanger or be likely to endanger the lives or property of others. G.S. § 20-140; Kilman [Kolman] v. Silbert, 219 N. C. 134, 12 S.E.2d 915. * * * Of course it was the duty of the deceased to look before she started back across the highway. Even so, under the circumstances here disclosed, her failure so to do may not be said to constitute contributory negligence as a matter of law. It is for the jury to say whether her neglect in this respect was one of the proximate causes of her injury and death. McKinney v. Bissel, [Mo.App., 263 S.W. 533], supra."
The facts in the instant case are distinguishable from those in Tysinger v. Coble Dairy Products, 225 N.C. 717, 36 S. E.2d 246. There, the plaintiff's testate was walking toward the defendant's truck. The truck was visible from 300 yards to a quarter mile. The accident occurred in broad daylight and there was nothing to put the driver of the truck on notice that the plaintiff's testate was oblivious to its approach. And when he started across the highway immediately in front of the truck, the driver of the truck swerved it to the left and plaintiff's testate apparently walked into the side of the vehicle. Likewise, Sechler v. Freeze, 236 N.C. 522, 73 S.E.2d 160; Chaffin v. Brame, 233 N.C. 377, 64 S.E.2d 276; Hobbs v. Queen City Coach Co., 225 N.C. 323, 34 S.E.2d 211; and Reeves v. Staley, 220 N.C. 573, 18 S. E.2d 239, are not controlling on this record.
Ordinarily, contributory negligence is an affirmative defense which the defendant must plead and prove. G.S. § 1-139. And a nonsuit on the ground of contributory negligence should not be granted unless the plea of such negligence has been so clearly established by the plaintiff's evidence that no other conclusion can be reasonably drawn therefrom. Levy v. Carolina Aluminum Co., 232 N. C. 158, 59 S.E.2d 632; Dawson v. Seashore Transportation Co., 230 N.C. 36, 51 S.E.2d 921; Bundy v. Powell, supra; Hobbs v. Drewer, 226 N.C. 146, 37 S.E.2d 121; Atkins v. White Transportation Co., 224 N.C. 688, 32 S.E.2d 209.
Negligence is not presumed from the mere fact that one is killed. Tysinger v. Coble Dairy Products, supra. Neither is one presumed to be guilty of contributory negligence as a matter of law because he failed to yield the right of way to a vehicle on a highway when crossing such highway at an unmarked crossing other than at an intersection, as provided by G. S. § 20-174(a). Simpson v. Curry, N.C., 74 S.E.2d 649; Citizens Nat. Bank v. Phillips, 236 N.C. 470, 73 S.E.2d 323; Lewis v. Watson, 229 N.C. 20, 47 S.E.2d 484; Templeton v. Kelley, 215 N.C. 577, 2 S.E.2d 696. G.S. § 20-174(e) provides that notwithstanding the provisions of G. S. § 20-174(a), "every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway".
In Citizens Nat. Bank v. Phillips, supra, which case involved questions similar to those raised on the present record, Johnson, J., in speaking for the Court, said [236 N.C. 470, 73 S.E.2d 326]: "If it be conceded that the intestate failed to yield the right of way as required by this statute, even so, it was the duty of the defendant, both at common law and under the express provisions of G.S. § 20-174(e), to `exercise due care to avoid colliding with' the intestate. * * * Our decisions hold that a failure so to yield the right of way is not contributory negligence per se, but rather that it is evidence of negligence to be considered with other evidence in the case in determining whether the actor is chargeable with negligence which proximately caused or contributed to his injury."
We think the evidence offered in the trial below is sufficient to require its submission to the jury on the issues of negligence and contributory negligence.
Reversed.
