The plaintiff sues to recover for injuries sustained in an automobile accident occurring in the State of Ohio. Liability is to be determined by the law of that State, for unless the plaintiff is entitled to recover there, he is not entitled to recover here. If, however, under the lex loci, a transitory cause of action accrues, it may be prosecuted in another jurisdiction, unless forbidden by public policy or the lex fori. This is conceded. Wise v. Hollowell, 205 N. C., 286, 171 S. E., 82; Steele v. Telegraph Co., 206 N. C., 220, 173 S. E., 583.

The defendant was not an insurer of plaintiff’s safety while on the trip in question, and we agree with the trial court that the evidence *499offered fails to sbow snob conduct on her part as imports liability under the law applicable. S. v. Cope, 204 N. C., 28, 167 S. E., 456. The plaintiff was injured in an unfortunate accident, it is true, but an accident it was, jrare and simple. Thomas v. Lawrence, 189 N. C., 521, 127 S. E., 585; Patterson v. Ritchie, 202 N. C., 725, 164 S. E., 117. He himself testified: “I do not know what I would have done had I been at the wheel.” He later said he would have applied the brakes rather than put his foot on the accelerator, but he was then speaking in the light of subsequent events. “Hindsight is usually better than foresight.”

While the defendant may not have pursued the safest course or acted with the best judgment or the wisest prudence, in the light of what occurred, still it is not thought that this should be imputed to her for negligence, because with a flat tire and “shimmying” car she was faced with an emergency which required instant action without opportunity for reflection or deliberation. Smith v. R. R., 200 N. C., 177, 156 S. E., 508. She was “trying to hold the car in the road, gripping the wheel and struggling,” when it suddenly went over the embankment and into the ditch. Some allowance must be made for the excitement of the moment and the strain of nerves. One who is required to act in an emergency is not held by the law to the wisest choice of conduct, but only to such choice as a person of ordinary care and prudence, similarly situated, would have made. Poplin v. Adickes, 203 N. C., 726, 166 S. E., 908; Pridgen v. Produce Co., 199 N. C., 560, 155 S. E., 247; Odom v. R. R., 193 N. C., 442, 137 S. E., 313; Parker v. R. R., 181 N. C., 95, 106 S. E., 755; Norris v. R. R., 152 N. C., 505, 67 S. E., 1017. In Hinton v. R. R., 172 N. C., 587, 90 S. E., 756, it is said: “It is well understood that a person in the presence of an emergency is not usually held to the same deliberation or circumspect care as in ordinary conditions.” In other words, the standard of conduct required in an emergency, as elsewhere, is that of the prudent man. Jernigan v. Jernigan, 207 N. C., 831, 178 S. E., 587; Small v. Utilities Co., 200 N. C., 719, 158 S. E., 385. “If the peril seemed imminent, more hasty and violent action was to be expected than would be natural at quieter moments, and such conduct is to be judged with reference to the stress of appearances at the time, and not by the cool estimate of the actual danger formed by outsiders after the event” — Holmes, J., in Gannon v. R. R., 173 Mass., 40.

Liad the emergency been brought about by defendant’s own carelessness, as was the case in Luttrell v. Hardin, 193 N. C., 266, 136 S. E., 726, a different situation might have arisen. Annotation, 79 A. L. E., 1277. But plaintiff’s testimony is to the effect that the defendant “was driving carefully and prudently about the time the trouble started.”

The judgment of nonsuit is correct.

Affirmed.

dissenting: Tbe testimony of tbe plaintiff and bis witnesses indicated an emergency or sudden peril immediately before tbe wrecking of tbe automobile wbicb tbe defendant was driving at tbe time, and tbe court below beld as a matter of law that tbis was a sufficient defense. Otherwise, tbe case would have gone to tbe jury, for there was testimony by tbe plaintiff, corroborated by other witnesses for tbe plaintiff, that tbe defendant negligently put her foot on tbe accelerator instead of tbe brakes when tbe automobile began to “shimmy” or swerve from one side of tbe road to tbe other. Certainly, when considered in tbe light most favorable to tbe plaintiff, tbis was more than a scintilla of evidence. Tinsley v. Winston-Salem, 192 N. C., 597.

It was beld in Jernigan v. Jernigan, 207 N. C., 831 (see, also, Jernigan v. Jernigan, 207 N. C., 851), that tbe defense of sudden emergency is one for tbe jury. Tbis is tbe universal bolding among American courts. As was said in Combs v. Markley (Me.), 143 Atl., 261 (263) : “Tbe law as to drivers of motor vehicles is not different from that wbicb governs other persons. Whether tbe conduct measured up to tbe standard of common caution for tbe driver of a motor vehicle under like conditions and circumstances was a question of fact. Massie v. Barker, 224 Mass., 420, 113 N. E., 199. Where an automobilist, to avoid striking a pedestrian, swerved fo one side and struck a wagon, it was for tbe jury to determine whether bis act was tbe result of an emergency, and whether, if there was an emergency, defendant acted with becoming qn’udence, not necessarily with tbe same degree of deliberation and heed as in an affair of human life elsewhere but there. Kosrofian v. Donnelly (R. I.), 117 A., 421. Tbe driver is exonerated if tbe course wbicb be takes in an emergency is one wbicb an intelligent and prudent man would take. Whether be did tbis was a question for tbe jury. Gravel v. Roberge, 125 Me., 399, 134 A., 375. See, too, Brown v. Rhoades, 126 Me., 186, 137 A., 58, 53 A. L. R., 834; Lammers v. Carstensen, 109 Neb., 475, 191 N. W., 670; Richards v. Rifenbery, 108 Okl., 56, 233 P., 692; Lee v. Donnelly, 95 Vt., 121, 113 A., 542; Donker v. Powers, 230 Mich., 237, 202 N. W., 989; Henderson v. Dimond, 43 R. I., 60, 110 A., 388. When tbe facts are such that reasonable men may fairly differ upon tbe question as to whether there was negligence or not, tbe determination of .the matter is for tbe jury. Larrabee v. Sewall, supra; Parker v. Smith, 100 Vt., 130, 135 A., 495. That is tbis case.”

Tbe Jernigan case, supra, is abundantly supported by decisions in other jurisdictions. Combs v. Markley, supra, and cases there cited; Hansen v. Bedell Co. (Or.), 268 P., 1020; Oginskas v. Fredsal (Conn.), *501143 Atl., 888; Casey v. Sicilliano (Pa.), 165 Atl., 1; Watkins v. Watkins (Wis.), 245 N. W., 695; Hatcher v. Cantrell (Term.), 65 S. W. (2d), 247.

It is well established that if different men can draw different conclusions from the evidence, it is a question for the jury. Fowler v. Underwood, 193 N. C., 402. The jury is charged with the duty of passing upon the credibility of witnesses, so long as they do not testify to the impossible. Hanes v. Southern Public Utilities Co., 188 N. C., 465. In eases where there is any substantial evidence in the record to support allegations, the question of negligence is properly submitted to the jury. Jernigan v. Jernigan, supra; Fields v. Brown, 205 N. C., 543.

In this case there was testimony by the plaintiff and other witnesses that an emergency or sudden peril arose, that the defendant was negligent in failing to slow down and in speeding up after the emergency arose.

It is a matter of grave concern to those who travel on the highways of the State to take away from the jury the rule of the prudent man, even in an emergency. This Court would soon become an autocracy of five, and trial by jury a misnomer. The American authorities are, I might say, almost unanimous against the position taken in the main opinion.