Tbe position of tbe defendants in support of tbeir motion for judgment of nonsuit is tbat there is no evidence tbat Combs, wbo was driving tbe dray, was engaged in tbe business of tbe defendants át tbe time of tbe collision. It is true no witness testifies directly to tbe fact, but tbe circumstances tend to prove it, and tbe pleadings and tbe whole course of tbe trial show tbat this fact was not in controversy.

Tbe complaint alleges “tbat on tbe 18th day of September, 1916, and prior thereto, John Combs was in tbe employ of tbe defendants, bis duties being, among other things, to drive the dray or wagon for tbe defendants in delivering goods and other works connected with tbe said business of said defendants,” and this allegation is admitted in tbe answer.

Tbe plaintiff testified tbat at tbe time of tbe collision Combs was driving a dray belonging to tbe defendants and tbat be was going from tbe store of tbe defendants to tbeir stock bouse, and bis Honor in bis charge to tbe jury spoke of Combs more than once as tbe agent of tbe defendants, and of bis acts as tbeir acts, without objection at tbe time, and no exception is now taken to this part of tbe charge.

We do not think this contention of tbe defendants can be sustained, and being of opinion there is evidence of negligence, tbe ruling on tbe motion for judgment of nonsuit is upheld.

Tbe exception of tbe defendants to tbe charge on tbe issue of contributory negligence is well taken.

If tbe night was dark and tbe plaintiff in tbe shade of a tree; if tbe lights were so located tbat tbe plaintiff could see tbe approach of tbe employee of tbe defendants and tbat be was moving at a high rate of speed; if tbe plaintiff was in tbe.middle of tbe street and in danger of a collision, and be did not attempt to turn to tbe right and made no outcry, and gave no notice of bis presence, be was guilty of contributory negligence, and as there was evidence tending to prove these facts, tbe defendants were entitled to have them submitted to tbe jury without tbe qualification of tbe rule of tbe prudent man, which, under tbe evidence in this ease, permitted tbe jury to answer tbe second issue against tbe defendants although they might find every fact bearing on tbe conduct of tbe plaintiff as tbe defendants contended, if, upon tbe whole evidence, tbe jury thought tbe plaintiff was acting as a man of ordinary prudence.

Tbe rule of tbe prudent man is tbe standard for determining negligence and contributory negligence, and it is frequently sufficient to submit tbe question to tbe jury with this as tbe sole guide, but it is error to superadd this qualification to a statement of facts which themselves, singly or in combination, establish negligence or contributory negligence.

*148 A precedent in point is Hinson v. Telegraph Co., 182 N. C., 466, in which a new trial was ordered on account of a similar erroneous charge.

New trial.