delivered the opinion of the court.
The only error assigned is to the action of the court in refusing to set aside the verdict and enter up judgment for defendant.
The facts, briefly stated, are that, on November 11,1930, F. D. Tarrall, Sr., the plaintiff, and three of his sons started on an automobile trip from Norfolk, Virginia, to visit another son in Greensboro, North Carolina. Plaintiff and one son were riding on the rear seat. The other two sons were on the front seat, with Henry A. Tarrall driving. Just before the party reached Warrenton, North Carolina, and while approaching a curve on a down grade, one of the sons called the driver’s attention to a curve in the road ahead. The driver testified that as soon as this was done he took his foot off the accelerator. “I got to the down grade of this hill and the car started swinging and I told them, I said ‘Fellow’s I don’t know what it is, but the brakes won’t hold and I can’t do a damn thing with it.’ And by the time I got those remarks out of my mouth the car turned over.”
The plaintiff, the father of the three boys, testified:
“Q. You charge him with carelessness. What did he do?
“A. Letting the car get out of his control, or something.
“Q. What did he do, was he driving too fast, did he take his hand off the steering wheel ?
“A. He was not driving too fast. When the car got away from him and started down the hill it went too fast. That is when it went too fast.
“Q. It was a gradual grade down there?
“A. A right good grade down there, I think.
“Q. You don’t think he was driving too fast?
“A. No.”
This uncontradicted evidence establishes the fact that the car was not being driven at an excessive or dangerous
For the reasons stated, the judgment of the court is reversed, the verdict of the jury set aside, and judgment here entered for defendant.
Reversed...
By reason of circumstances over which the court had no control, it became necessary to reassign the task of preparing this opinion. This accounts for the delay in deciding the ease.