The opinion of the court was delivered by: Oxner, Justice.
Dan Melton brought this action to recover damages to person and property resulting from a collision between his Ford truck and a Buick automobile operated by Tom Ritch. The trial resulted in a directed verdict for Ritch, the defendant, upon the ground that there was no proof that he was guilty of negligence. More specifically, the trial Judge held that the undisputed evidence showed that the defendant, while proceeding on his proper side of the road, was confronted with a sudden emergency created by the conduct of third parties approaching from the opposite direction on the wrong side of the road and was, as a matter of law, not negligent in turning to the left in order to avoid a head on collision with the vehicles of these third parties, even though this caused a collision with the Ford truck of plaintiff who was approaching in the opposite direction on his right side of the road. This conclusion is challenged by plaintiff on this appeal. He contends that the issue of defendant's negligence should have been submitted to the jury.
The collision occurred at about 9:45 P.M. on March 25, 1956, at a point on State Highway No. 38, two or three miles north of Bennettsville. This is a hard surfaced highway, approximately 22 feet wide, with grass shoulders on each side. The shoulders were wide enough to easily permit the parking of an automobile thereon. There were no obstructions to prevent one from driving off the highway onto the shoulders. At the place of the accident the highway is straight and level and a vehicle approaching from the north could be seen for a considerable distance. The night was dark but the weather was clear.
Plaintiff was alone in the truck. In the Buick automobile with the defendant was one Monty Wells. The latter did not testify. Defendant's testimony was substantially as follows:
As he was traveling in a northerly direction at a speed of about 50 miles per hour, he saw approaching him quite a distance ahead a motor vehicle, which later proved to be plaintiff's truck, followed by two cars abreast of each other. When about three-quarters of a mile from these vehicles, defendant's friend and companion, Monty Wells, remarked, "Look coming there, Tom." A little later Wells exclaimed: "Here comes some cars; get over here on the shoulder." Shortly before defendant met these vehicles, one of the cars following plaintiff pulled back behind the other but remained on defendant's side of the road. Wells then said to defendant: "Tom, we're dead, pull over to the right." When about 50 feet away from plaintiff's truck, defendant in order to avoid a collision with the oncoming car on his side of the road, swerved to the left and the left front of defendant's car struck the truck of the plaintiff on the latter's side of the road. The cars of these third parties then passed around the wrecked vehicles on the left side of the road.
The explanations given by defendant for not pulling to the right on the shoulder are somewhat conflicting. On one or two occasions he said he had a right to remain in his lane of traffic. At several other points in his testimony he said he was faced with a head on collision with only a second to think and concluded the the safest course to pursue was to turn to the left. We take the following from his testimony:
"Q. * * * Tom, you are convinced now really though, that if you had pulled to the right, if you had of pulled to the right, you wouldn't have had a wreck and we wouldn't be in this court room? A. Yes, sir, if I had pulled to the right. * * *"
"Q. Mr. Ritch, how much time did you have to make this decision that Mr. Lindsay is talking to you about? A. Well, the last time, I didn't have but just maybe a few seconds.
"Q. Just like that (snaps fingers) you had to do something? A. Yes, sir.
"Q. When you realized the danger of the situation, how far away were the two racing cars from you? A. Well, the last time — well, when they was right, I would say about fifty feet in front of me.
"Q. Mr. Ritch, how far away from you were the two racing automobiles when you realized that an accident was going to happen? ...