Thacker v. Harris , 22 N.C. App. 103 ( 1974 )

205 S.E.2d 744 (1974) 22 N.C. App. 103

James A. THACKER, Administrator of the Estate of Vicki Lynn Thacker
v.
Wallace G. HARRIS and Rebecca Sue Harris.

No. 7415SC234.

Court of Appeals of North Carolina.

June 19, 1974.

Dalton & Long by W. R. Dalton, Jr., Burlington, for plaintiff appellant.

Sanders, Holt & Spencer by Frank A. Longest, Jr., and Emerson T. Sanders, Burlington, for defendants appellees.

PARKER, Judge.

There was ample evidence to require submission of issues of negligence and contributory negligence. The question presented is whether plaintiff's tendered issue of last clear chance should also have been submitted. We hold that it should.

Discussing the doctrine of last clear chance, Justice Lake, writing the opinion of our Supreme Court in Exum v. Boyles, 272 N.C. 567, 158 S.E.2d 845, after approving the holding but disapproving some of the language of earlier decisions, said:

"In each of those cases, it is clear that what the court held was that to bring into play the doctrine of the last clear chance, there must be proof that after the plaintiff had, by his own negligence, gotten into a position of helpless peril (or into a position of peril to which he was inadvertent), the defendant discovered the plaintiff's helpless peril (or inadvertence), or, being under a duty to do so, should have, and, thereafter, the defendant, having the means and the time to avoid the injury, negligently failed to do so."

Applying these principles to the evidence in the present case and viewing that evidence in the light most favorable to the plaintiff, the jury could find: During the entire time defendant driver drove her car 900 feet along Williamson Street, plaintiff's intestate and her companion were in the driver's line of vision directly in front of her with nothing between them to obstruct her view. Although night was approaching, it was not yet dark, and although the two pedestrians wore dark clothing, they were clearly visible to an acquaintance, who had no difficulty recognizing them without use of headlights on his car and at a distance of 125 feet. Plaintiff's intestate was walking, with her back to the direction from which defendant driver was approaching, on the paved portion of the street some two to three feet from the right-hand edge of the pavement and in defendant driver's lane of travel. Neither plaintiff's intestate nor her companion were aware of the automobile's approach until the instant of impact. There was no approaching traffic or other obstruction to interfere with defendant driver's opportunity to turn her car toward the center or left-hand portion of the street in order to avoid hitting plaintiff's intestate.

Defendant driver owed to plaintiff's intestate, and to all others using the street on which she was driving, the duty to maintain a lookout in the direction in which she was traveling and to see what was there for her to see. On the evidence in this record, the jury could find that had she maintained a proper lookout, she could, and in the exercise of due care should, have seen plaintiff's intestate walking on the traveled portion of the street in front of her, in a position of obvious peril; she could, and in the exercise of due care should, have observed that plaintiff's intestate was inadvertent to her peril; after, in the exercise of due care, she should have discovered this inadvertence, she still had sufficient time and means to avoid the injury, but negligently failed to do so. These findings, if made by the jury, would support a verdict that defendant driver had the last clear chance to avoid the accident. We do not suggest that the evidence would compel such findings, as to which in any event plaintiff would have the burden of proof. We do hold that the evidence was such as to give rise to an issue as to the last clear chance and such issue should have been submitted to the jury. This holding is supported by the decision in Wanner v. Alsup, 265 N.C. 308, 144 S.E.2d 18.

We note that Section 1 of Chap. 1156 of the 1971 Session Laws amended G.S. 1A-1, Rule 7(a) to include provision that "[i]f the answer alleges contributory negligence, a party may serve a reply alleging last clear chance." Here, plaintiff did not serve a reply and did not allege last clear chance by using those exact words in his complaint. However, he did allege in his complaint, among other allegations of negligence, that "[w]hen she [referring to defendant driver] saw, or by the exercise of due care could have seen, that a collision with plaintiff's intestate was imminent, and so saw or could have seen in time to avoid a collision, she failed and neglected to take steps to avoid a collision." This pleading was sufficiently particular to give notice that plaintiff intended to offer proof of occurrences giving rise to last clear chance, and under our new Rules of Civil Procedure the complaint here was sufficient under Rule 8 to justify submitting to the jury an issue as to last clear chance. In any event, the complaint could be amended to conform it to the evidence, even after judgment. Rule 15(b); Swift & Co. v. Young, 107 F.2d 170.

For failure of the trial court to submit plaintiff's tendered issue as to last clear chance, plaintiff is entitled to a

New trial.

VAUGHN and CARSON, JJ., concur.