The opinion
ClaRKSON, J.,
dissenting: Tbe testimony of tbe plaintiff and bis witnesses indicated an emergency or sudden peril immediately before tbe wrecking of tbe automobile wbicb tbe defendant was driving at tbe time, and tbe court below beld as a matter of law that tbis was a sufficient defense. Otherwise, tbe case would have gone to tbe jury, for there was testimony by tbe plaintiff, corroborated by other witnesses for tbe plaintiff, that tbe defendant negligently put her foot on tbe accelerator instead of tbe brakes when tbe automobile began to “shimmy” or swerve from one side of tbe road to tbe other. Certainly, when considered in tbe light most favorable to tbe plaintiff, tbis was more than a scintilla of evidence. Tinsley v. Winston-Salem, 192 N. C., 597 .
It was beld in Jernigan v. Jernigan, 207 N. C., 831 (see, also, Jernigan v. Jernigan, 207 N. C., 851 ), that tbe defense of sudden emergency is one for tbe jury. Tbis is tbe universal bolding among American courts. As was said in Combs v. Markley (Me.), 143 Atl., 261 (263) : “Tbe law as to drivers of motor vehicles is not different from that wbicb governs other persons. Whether tbe conduct measured up to tbe standard of common caution for tbe driver of a motor vehicle under like conditions and circumstances was a question of fact. Massie v. Barker, 224 Mass., 420 , 113 N. E., 199 . Where an automobilist, to avoid striking a pedestrian, swerved fo one side and struck a wagon, it was for tbe jury to determine whether bis act was tbe result of an emergency, and whether, if there was an emergency, defendant acted with becoming qn’udence, not necessarily with tbe same degree of deliberation and heed as in an affair of human life elsewhere but there. Kosrofian v. Donnelly (R. I.), 117 A., 421 . Tbe driver is exonerated if tbe course wbicb be takes in an emergency is one wbicb an intelligent and prudent man would take. Whether be did tbis was a question for tbe jury. Gravel v. Roberge, 125 Me., 399, 134 A., 375 . See, too, Brown v. Rhoades, 126 Me., 186, 137 A., 58 , 53 A. L. R., 834; Lammers v. Carstensen, 109 Neb., 475 , 191 N. W., 670 ; Richards v. Rifenbery, 108 Okl., 56 , 233 P., 692 ; Lee v. Donnelly, 95 Vt., 121 , 113 A., 542 ; Donker v. Powers, 230 Mich., 237 , 202 N. W., 989 ; Henderson v. Dimond, 43 R. I., 60, 110 A., 388 . When tbe facts are such that reasonable men may fairly differ upon tbe question as to whether there was negligence or not, tbe determination of .the matter is for tbe jury. Larrabee v. Sewall, supra; Parker v. Smith, 100 Vt., 130 , 135 A., 495 . That is tbis case.”
Tbe Jernigan case, supra, is abundantly supported by decisions in other jurisdictions. Combs v. Markley, supra, and cases there cited; Hansen v. Bedell Co. (Or.), 268 P., 1020 ; Oginskas v. Fredsal (Conn.), *501 143 Atl., 888 ; Casey v. Sicilliano (Pa.), 165 Atl., 1 ; Watkins v. Watkins (Wis.), 245 N. W., 695 ; Hatcher v. Cantrell (Term.), 65 S. W. (2d), 247 .
It is well established that if different men can draw different conclusions from the evidence, it is a question for the jury. Fowler v. Underwood, 193 N. C., 402 . The jury is charged with the duty of passing upon the credibility of witnesses, so long as they do not testify to the impossible. Hanes v. Southern Public Utilities Co., 188 N. C., 465 . In eases where there is any substantial evidence in the record to support allegations, the question of negligence is properly submitted to the jury. Jernigan v. Jernigan, supra; Fields v. Brown, 205 N. C., 543 .
In this case there was testimony by the plaintiff and other witnesses that an emergency or sudden peril arose, that the defendant was negligent in failing to slow down and in speeding up after the emergency arose.
It is a matter of grave concern to those who travel on the highways of the State to take away from the jury the rule of the prudent man, even in an emergency. This Court would soon become an autocracy of five, and trial by jury a misnomer. The American authorities are, I might say, almost unanimous against the position taken in the main opinion.