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Motion for judgment of nonsuit was properly denied, but we think defendant's exception to a material portion of the court's instruction to the jury must be sustained. The court charged the jury that it was the duty of defendant's driver in approaching the street intersection, under the law, to stop before entering, and ""that if he failed to stop that would make him guilty of negligence per se, that is, negligence in itself."" In view of the decisions of this Court in Hill v. Lopez, 228 N.C. 433, 45 S.E.2d 539; Nichols v. Goldston, 228 N.C. 514, 46 S.E.2d 320; Swinson v. Nance, 219 N.C. 772, 15 S.E.2d 284; Groome v. Davis, 215 N.C. 510, 2 S.E.2d 771; Stephens v. Johnson, 215 N.C. 133, 1 S.E.2d 367; Sebastian v. Motor Lines, 213 N.C. 770, 197 S.E. 539, this instruction must be held for error entitling the defendant to a new trial. In Groome v. Davis, supra, it was said: ""Failure to observe a stop sign is not negligence per se, not even prima facie negligence, just evidence of negligence."" The statute G.S. 20-158 which requires drivers of vehicles to stop before entering a through highway where highway stop signs have been erected, contains also provision that failure to stop shall not be considered contributory negligence per se, and in Sebastian v. Motor Lines, supra, it was said that it followed as a necessary corollary that this provision applied also to the party sued, and that the defendant's failure to stop would not be considered negligence per se, but only evidence thereof.

Professional & Technical
November 10
LawApp Publishers
Innodata Book Distribution Services Inc