Williams v. Spell , 51 N.C. App. 134 ( 1981 )

275 S.E.2d 282 (1981)

Lettie Lou WILLIAMS, Administratrix of the Estate of Winfred Scott Williams
v.
Lawrence SPELL.

No. 804SC708.

Court of Appeals of North Carolina.

March 3, 1981.

Warrick, Johnson & Parsons, by Dale P. Johnson, Clinton, for plaintiff-appellee.

Warren & Fowler, by Miles B. Fowler, Clinton, for defendant-appellant.

HILL, Judge.

In his first assignment of error, defendant argues that the trial judge erred by submitting the issue of last clear chance to the jury.

Justice Lake, writing in Exum v. Boyles, 272 N.C. 567, 575, 158 S.E.2d 845 (1968), points out that "the doctrine of the last clear chance is not a single rule, but is a series of different rules applicable to differing factual situations." Justice Lake goes on to point out that there is a great deal of confusion about the doctrine, stemming from a failure to observe that every case involves a different factual situation and, therefore, calls into play different rules comprising part of the doctrine. Each case must be considered on its own facts but in every case, in order

to bring into play the doctrine of last clear chance, there must be proof that after the plaintiff [in this case plaintiff's deceased] 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.

Exum at p. 576, 158 S.E.2d 845.

Defendant concedes the deceased was contributorily negligent and, in fact, contends in his brief that the trial court should have found "plaintiff's intestate guilty of contributory negligence as a matter of law." Defendant further concedes he was negligent in failing to see the deceased, plaintiff's intestate, but argues there is no evidence that his negligent failure was the proximate cause of the accident because there is absolutely no evidence of where deceased was just prior to the accident. Therefore, all we must decide is whether there was enough evidence for the jury to find that the deceased's contributory negligence placed him in a position of helpless peril, whether defendant should have discovered deceased's peril, and whether defendant had the means and time to avoid the injury but negligently failed to do so.

We find that the circumstantial evidence introduced at trial was sufficient for the jury to find that the deceased, as a result of his conceded contributory negligence, placed himself in a position of helpless peril by walking on the roadway with the flow of traffic, that is, with his back to traffic. Finally, the evidence is sufficient for a jury to find that defendant had the means and time to avoid the fatal accident but negligently failed to do so, giving the degree of visibility, plaintiff's evidence indicating a lack of oncoming traffic and defendant's concession that he could have moved either to the left or right had he seen the deceased. The issue of last clear chance was properly submitted to the jury. Defendant's assignment of error is without merit and overruled.

Defendant further assigns as error the trial judge's failure to allow his motions for summary judgment, directed verdict and for judgment notwithstanding the verdict. For reasons stated above, these assignments of error are without merit and overruled.

The judgment of the lower court is

Affirmed.

HEDRICK and WEBB, JJ., concur.