dissenting: I think the decision in this case involves considerations with which the jury alone has the right to deal. In its rationale it disregards the rules established for the consideration of questions of nonsuit in an appellate court, designed to prevent just that result.
*114In considering whether the evidence discloses negligence on the part of the defendants, the main opinion frankly takes note of the evidence of the defendants, and the explanation given by them, as supporting the conclusion that there was no negligence. That is, of course, contrary to the rule, and “invades the province of the jury,” since this Court is not a judge of the credibility, of the evidence. Lassiter v. R. R., 171 N. C., 283, 88 S. E., 335; Hill v. R. R., 195 N. C., 605, 143 S. E., 129; Dickerson v. Reynolds, 205 N. C., 770, 172 S. E., 402. Specifically, two circumstances or conditions as to which the evidence is said to be “uncon-tradicted” are taken from the defendants’ evidence and made to serve as alleviating the prima facie negligence of defendants in parking partly upon the concrete of the highway and relaxing their duty to the public and to the plaintiff in this regard: First, that they were confronted with an emergency; second, that they were engaged on a mission of mercy. And, perhaps, a third reason is suggested: That they were following the car which overturned so closely that they had no opportunity to observe the statute.
But the plaintiff’s evidence simply reveals that the defendants’ truck was parked partly upon the concrete highway, and that it had a “little bitty dim red light” on one side of the rear end. Plaintiff’s witness riding in the ear, although he kept a lookout down the hill in the direction of travel, did not see the light at all. There is nothing in plaintiff’s evidence about any emergency affecting the conduct of defendants. Hendrix v. R. R., 198 N. C., 142, 150 S. E., 873; Ford v. R. R., 209 N. C., 108, 182 S. E., 717; Gower v. Davidian, 212 N. C., 172, 193 S. E., 28.
It was a violation of law to park in this way on the highway, and the statute was made in the interest of public safety. Chapter 407, section 123, Public Laws of 1937; Burke v. Coach Co., 198 N. C., 8. It should be self-evident that a defendant cannot exonerate himself in this Court from prima facie negligence or negligence of which there is any evidence, by his own evidence.
A doubt is expressed in the opinion (which necessarily must be based upon defendants’ evidence), whether the act of the defendants in leaving the truck in this position on the highway constitutes parking within the purview of the statute. I cannot authoritatively define “parking” in a dissenting opinion, but it seems to me clear that a car is parked when those in charge stop it upon a highway and intentionally leave it upon the concrete to pursue some activity other than that concerned with the car and its operation, however commendable it may be. This, however, is hardly worth considering, since the statute itself contains the definition sufficient to make it an offense to leave a car thus standing. In so far as this plaintiff and his rights are concerned, the car was parked, showing only “a little bitty dim red light” on the end of it. This was the *115measure of tbe defendants’ compliance witb one of tbe most important safety statutes on tbe books.
If tbe liberality witb wbicb tbe defendants’ conduct is treated is so outstanding, tbe rigidity of tbe view taken of plaintiff’s behavior in tbis unfortunate and complicated occurrence is equally unwarranted. Tbe conclusion tbat plaintiff, as a matter of law, was contributorily negligent is not well founded.
Tbe conclusion is based principally upon two things: First, tbat plaintiff was driving at a rate of speed tbat would carry him beyond tbe effective range of bis lights before be could have stopped. Tbis is contrary to’ plaintiff’s evidence. “My lights showed as far as from tbe witness chair to tbe back of tbe courtroom. (Admitted to be 67 feet.) I don’t know bow far my lights were showing tbat night — I imagine it was around fifty feet. Approximately fifty feet. According to my testimony it would take me tbe full distance of my light beam to stop.” Tbis occurs in tbe cross-examination. Whether we take fifty feet or sixty-seven feet as tbe effective range of tbe light beam, be said be could have stopped tbe car in tbis distance. But the Court requires him, as a matter of law, to apply the bralces as soon as the parked truck could have been seen, whether he saw it or not, bolding him to tbe rigid necessity of seeing it at tbat time, without reference to any conditions wbicb might have qualified or affected tbat duty. Tbat is not tbe proper interpretation of tbe excerpt from Huddy on Automobiles, relaying from Weston v. R. R., 194 N. C., 210, 139 S. E., 237, quoted in tbe opinion. It was not tbe intention of tbe Court tbat tbis case should depart from tbe rule of reasonable prudence and substitute for it a mathematical form, or to require an instant recognition of danger when, through tbe exercise of tbe highest degree of diligence and alertness, it might have been seen. If so, it is tbe duty of tbis Court to disavow such a theory at once.
There were plenty of qualifying conditions. Amongst them tbe approach of another ear, witb glaring lights, from tbe direction of tbe parked truck. Here, again, tbe opinion takes tbat view of tbe evidence most unfavorable to tbe plaintiff and bolds him negligent for not stopping when “blinded by tbe glare of tbe approaching car.” It does not accept bis reasonable explanation of what be meant by “blinded,” tbat is, tbat be could see some, and ignores the fact tbat be did slow to fifteen or twenty miles.
It is true tbat some parts of tbe plaintiff’s evidence may be less favorable to him than others, but tbe rule tbat tbis evidence must be taken in tbe most favorable light to tbe plaintiff applies as much to tbe plaintiff’s testimony as it does to tbat of tbe testimony of any other witness, and even where it is contradictory tbat part of it wbicb is most favorable to tbe plaintiff must prevail. Dozier v. Wood, 208 N. C., 414, 181 S. E., *116336; Matthews v. Cheatham, 210 N. C., 592, 188 S. E., 87; Gunn v. Taxi Co., 212 N. C., 540, 193 S. E., 747; Mulford v. Hotel Co., 213 N. C., 603, 197 S. E., 169. Tbe practice of making out a case against tbe plaintiff on bis evidence, taken as a whole, is unwarranted in an appellate court, necessarily involving a consideration of tbe weight of testimony. Matthews v. Cheatham, supra; Mulford v. Hotel Co., supra. For tbe same reason it is even worse to make out a case against him upon tbe defendants’ evidence, however uncontradicted.
A broadside consideration of tbe whole evidence upon tbe question of nonsuit must be careful to consider tbe whole of tbe plaintiff’s evidence, including bis own testimony, in tbe light most favorable to him, and to exclude all of tbe defendants’ evidence except that which is favorable to tbe plaintiff, since tbe purpose of tbe investigation is to find out whether there is any evidence at all supporting plaintiff’s contention.
Tbe result of tbe trial should not be disturbed.
DeviN and Seawell, JJ., concur in dissent.