Threadgill ex rel. Threadgill v. Kendall , 262 N.C. 751 ( 1964 )

PER CüRIAm.

The evidence suffices to show these facts: The collision occurred on a rural road. It is paved. The paved area is 23 feet wide. The center line is painted, dividing the paved area into one lane for northbound traffic; the other for southbound. On each side of the road are shoulders four or more feet in width.

The collision occurred about one mile south of Albemarle, in or just north of a valley. The distance from the low point in the road to the crest of the hill to the north is 300 feet, and a similar distance to the crest of the hill to the south. The road is straight. There are no signs limiting the speed at which vehicles may travel. There are no intersecting highways in the immediate vicinity, although there is a private drive on the west side of the highway. Defendant, traveling south at 45 miles per hour, was in the western, defendant’s right hand lane. Plaintiff was riding his bicycle on the shoulder on the west side of the highway. Plaintiff turned to his right in front of defendant’s automobile. When plaintiff turned into the paved portion of the highway, defendant turned to his left to avoid a collision, but was unable to do so.

Plaintiff, to recover, must offer proof of the negligence alleged. Plaintiff alleges he was riding in his proper traffic lane; the collision was caused by defendant’s wrongful use of that lane. His proof is that defendant was in his proper lane and only left it to avoid a collision made imminent by plaintiff’s wrongful use of defendant’s lane. The variance between the allegations and proof is apparent. The nonsuit was proper. Hall v. Poteat, 257 N.C. 458, 125 S.E. 2d 924; Strong’s N. C. Index, Pleading, sec. 28, Notes 364 and 365.

Affirmed