The opinion
*440 BaeNHill, J.,
dissenting: I am unable to concur in tbe view adopted by tbe majority. In my opinion tbe evidence for plaintiffs fails to disclose any actionable negligence on tbe part of tbe defendant Plunkett. While there is testimony as to excessive speed, this is in nowise related to tbe accident as a proximate cause thereof. Nor does tbe majority opinion attempt to point out wherein tbe evidence on this aspect of tbe case is sufficient to repel tbe motion to nonsuit.
Tbe evidence for plaintiffs tends to show that tbe infant plaintiff was walking on tbe shoulder or dirt portion of tbe road and that Plunkett’s car never left tbe bard surface. “He stayed on tbe bard surface and stopped on tbe bard surface.” Neither of tbe two witnesses offered by plaintiffs actually saw tbe car and tbe child come in contact but looked tbe instant it happened. When they saw her “she was on tbe side of tbe car banging to it . . . looked like she was right up on tbe front fender on tbe side of tbe door, tbe way it looked from where I was at.” “He carried her a little bit through tbe air until she fell.” She was knocked to tbe side and fell in tbe weeds some distance from tbe road. Thus, it appears that tbe witnesses testified that she was “on tbe side of tbe car” and not that “she fell on tbe side of tbe car.”
If she bad continued along tbe shoulder and Plunkett did continue on tbe bard surface as tbe plaintiffs’ witnesses testified, no contact between her and Plunkett’s car could have occurred. What caused tbe contact or in what manner it was brought about is not disclosed by tbe evidence for tbe plaintiffs. Under these circumstances we may not assume negligent conduct on tbe part of Plunkett proximately causing tbe injury.
Defendants’ evidence does not aid tbe plaintiffs. On tbe contrary, it tends to fill in tbe hiatus in tbe evidence for tbe plaintiffs and to explain the unfortunate occurrence as an unavoidable accident in so far as Plunkett is concerned. Tbe other defendant is liable, if at all, only under tbe doctrine of imputed negligence.
After tbe front of Plunkett’s ear bad passed tbe child be felt something bump tbe side of bis car. As be passed she was on tbe shoulder and be was on tbe bard surface. This is tbe testimony of tbe individual defendant. Another witness who was following on behind Plunkett on still another car actually saw what happened and described tbe occurrence as follows:
“I beard tbe cry of tires of a car and just as I did I saw this child dart from tbe side of tbe road and as it turned out tbe child bit Mr. Plunkett’s car and was thrown back to tbe side of tbe ditch. . . . Tbe first time I saw tbe child she appeared from tbe side of tbe road, not tbe curb but tbe shoulder onto tbe concrete. When she went from tbe shoulder onto tbe concrete tbe car was about one-third of tbe distance from tbe right-hand side of tbe middle of tbe road. I could not say if any part of tbe car bad passed the child.”
*441 Tbe statute, C. S., 567, provides that tbe ruling upon tbe motion for nonsuit made at tbe conclusion of tbe testimony is to be “upon a consideration of all tbe evidence.” I doubt tbat we bave ever given tbis provision of tbe statute tbe full force and effect intended by tbe Legislature. Even so, we bave beld tbat tbe testimony for defendants wbicb tends to amplify or explain tbat offered by tbe plaintiffs is to be considered upon sucb a motion. S. v. Fulcher, 184 N. C., 663 , 113 S. E., 769 ; Harrison v. R. R., 194 N. C., 656 , 140 S. E., 598 ; Hare v. Weil, 213 N. C., 489 ; Sellars v. Bank, 214 N. C., 300 , 199 S. E., 266 ; Funeral Home v. Ins. Co., 216 N. C., 562 , 5 S. E. (2d), 820 .
In my opinion tbe motion first made should bave been allowed. In any event, applying tbe rule just stated, tbe second motion made at tbe conclusion of all tbe evidence should bave been sustained. Tbe evidence offered by defendants neither contradicts nor impeaches tbe evidence for plaintiffs. It serves only to explain, if indeed any explanation is required. Tbe evidence offered by plaintiffs fails to show actionable negligence. Tbe evidence offered by defendants in explanation completely exculpates them.
For tbe reasons stated I vote for a reversal.