Aydlett v. Keim , 232 N.C. 367 ( 1950 )

61 S.E.2d 109 (1950) 232 N.C. 367

AYDLETT
v.
KEIM.

No. 18.

Supreme Court of North Carolina.

September 20, 1950.

John B. McMullan, Elizabeth City, for plaintiff.

L. T. Seawell, of Norfolk, Va., and Worth & Horner, Elizabeth City, for defendant.

DENNY, Justice.

The defendant excepted to the submission of the third issue. Therefore, it becomes necessary to determine whether the evidence adduced in the trial below is sufficient to support a verdict in favor of the plaintiff on that issue. And in our opinion there is no evidence to support an affirmative answer thereto.

The doctrine of last clear chance or discovered peril is firmly established in our law; and is clearly and concisely stated by Barnhill, J., speaking for the Court in Ingram v. Smoky Mountain Stages, Inc., 225 N.C. 444, 35 S.E.2d 337, 339, as follows: "The contributory negligence of the plaintiff does not preclude a recovery where it is made to appear that the defendant, by exercising reasonable care and prudence, might have avoided the injurious consequences to the plaintiff, notwithstanding plaintiff's negligence; that is, that by the exercise of reasonable care defendant might have discovered the perilous position of the party injured or killed and have avoided the injury, but failed to do so. Haynes v. Southern R. Co., 182 N.C. 679, 110 S.E. 56, and cases cited; Redmon v. Southern R. Co., 195 N.C. 764, 143 S.E. 829; Caudle v. Seaboard Air Line R. Co., 202 N.C. 404, 163 S.E. 122; Jenkins v. Southern R. Co., 196 N.C. 466, 146 S.E. 83; Taylor v. Rierson, 210 N.C. 185, 185 S.E. 627."

Applying this doctrine to the evidence in the present case, it does not appear that the defendant was put on notice that plaintiff's intestate was drunk, ill or otherwise incapacitated. Conceding plaintiff's intestate was standing by his car, as contended by the plaintiff, nothing else appearing, the defendant was entitled to assume that he would exercise ordinary care for his own safety. This Court said in Reeves v. Staley, 220 N.C. 573, 18 S.E.2d 239, 246, speaking through Winborne, J.: "A motorist is not under a duty of anticipating negligence on the part of others, but in the absence of anything which gives or should give notice to the contrary, a person is entitled to assume, and to act on the assumption, that others will exercise ordinary care for their own safety", citing numerous authorities. See also Hobbs v. Queen City Coach Co., 225 N.C. 323, 34 S.E.2d 211; Tysinger v. Coble Dairy Products, 225 N.C. 717, 36 S.E.2d 246; Hill v. Lopez, 228 N.C. 433, 45 S.E.2d 539; Cox v. Lee, 230 N.C. 155, 52 S.E.2d 355; Bobbitt v. Haynes, 231 N.C. 373, 57 S.E. 2d 361.

Moreover we do not think the evidence before us places the plaintiff's intestate in a place of peril until it was too late for the doctrine of last clear chance to be invoked. "The doctrine is clearly inapplicable where the peril and defendant's discovery of the peril or his duty to discover it arose so shortly before the accident as to afford him no opportunity by the exercise of the greatest possible diligence, to avoid the injury. The doctrine contemplates a last ``clear' chance, not a last ``possible' chance, to avoid the accident; it must have been such a chance as would have enabled a reasonably prudent man in like position to have acted effectively." 65 C.J.S., Negligence, § 137(2), p. 774 et seq. There is no evidence to show how long the plaintiff's intestate had been out of his car, or how long he had been on the highway prior to the discovery of his presence thereon by the defendant. The application of the last clear chance doctrine is invoked only where there was a sufficient interval of time between the plaintiff's negligence and his injury during which the defendant, by the exercise of reasonable care, could or should have discovered the perilous position of the plaintiff in time to avoid injuring him.

The original or primary negligence of a defendant, which would warrant answering the first issue in the affirmative, cannot be relied upon by the plaintiff to recover under the last clear chance doctrine. A recovery on the original negligence is barred in such cases by the plaintiff's contributory negligence. The plaintiff's right to recover, notwithstanding his own negligence, must arise out of a factual situation which gave the defendant an opportunity, through the exercise of reasonable care, to have avoided the injury to him, but failed to do so. Ingram v. Smoky Mountain Stages, Inc., supra; 38 Am.Jur., Negligence, Sec. 218, p. 903 et seq.

The defendant's exception to the submission of the third issue is sustained.

The answer to the first two issues are determinative of the rights of the parties in this action. The contributory negligence of plaintiff's intestate was conceded by the plaintiff in the trial below and the jury so instructed. Consequently the defendant is entitled to judgment.

The case is remanded for judgment in accord with this opinion.

The plaintiff's motion to dismiss the appeal for failure to group and number the exceptions, as required by Rule 19(3) of the Rules of Practice in the Supreme Court, is disallowed.

Since the disposition of the appeal necessitated the consideration of only one exception, and the exceptions are separately numbered, although not separately assigned as error, we have elected in our discretion to dispose of the case on its merits without referring the transcript to the clerk or some attorney to state the exceptions as authorized by the rule.

Error and remanded.