Schaefer v. Wickstead , 88 N.C. App. 468 ( 1988 )

363 S.E.2d 653 (1988) 88 N.C. App. 468

Ruth S. SCHAEFER
v.
John Joseph WICKSTEAD, III, and Auto Warehouse, Inc.

No. 8718SC584.

Court of Appeals of North Carolina.

January 19, 1988.

George C. Collie, John F. Ray and Charles M. Welling, Charlotte, for plaintiff appellant.

William L. Stocks and Douglas E. Wright, Greensboro, for defendants appellees.

ARNOLD, Judge.

Plaintiff contends that the trial court erred in "failing to submit an issue and charge the jury under the doctrine of last clear chance." We disagree.

In order to be entitled to an instruction on the doctrine of last clear chance, the plaintiff must prove four elements: that (1) the pedestrian, by his own negligence, placed himself in a position of helpless peril, (2) the defendant was aware of, or by the exercise of reasonable care should have discovered, plaintiff's perilous position and his incapacity to escape, (3) the defendant had the time and means to avoid injury to the plaintiff by the exercise of reasonable care after he discovered or should have discovered the situation, and (4) the defendant negligently failed to use the time and means available to avoid injuring the pedestrian. Watson v. White, 309 N.C. 498, 308 S.E.2d 268 (1983). In the case sub judice, however, plaintiff does not present evidence of all four elements.

The first requirement is satisfied by the evidence that plaintiff negligently placed herself in a position of peril by which she could not escape by the exercise of reasonable care. Plaintiff, however, presented no solid evidence that defendant Wickstead was aware of, or by the exercise of reasonable care should have been aware of, plaintiff's perilous condition at a time early enough to avoid the accident.

In regard to this issue, plaintiff argues that defendant failed to keep a proper lookout and should have seen plaintiff when he was at least 200 feet away from her. Plaintiff bases this conclusion on the following factors: (1) G.S. 20-131(a) requires that a motor vehicle operated in the night have high beams sufficient to discern a person 200 feet ahead, (2) the average walking rate of a pedestrian is four feet per second, (3) plaintiff had been in the westbound lanes of Market Street approximately 5.5 seconds, (4) a car traveling at a speed of 25 to 30 miles per hour travels 36.6 to 43.9 feet per second, and (5) defendant Wickstead had between 5.5 to 4.55 seconds in which to avoid hitting plaintiff.

Despite the fact that plaintiff claims the average walking rate of a hypothetical pedestrian to be 4 feet per second, she produced no evidence concerning the rate at which plaintiff was walking on this occasion. We note here that plaintiff was sixty-four years of age, and that she was carrying a cake on a paper plate in her right hand and an african violet and her purse in the other. Also, there was no evidence that plaintiff had been in the westbound lane for 5.5 seconds. Plaintiff's conclusion that defendant failed to keep a proper lookout is based to a great degree on mere speculation. The trial court did not err in refusing to submit to the jury the issue of the last clear chance doctrine.

Plaintiff further argues that the trial court erred in instructing the jury on the doctrine of sudden emergency. We disagree.

The doctrine of sudden emergency applies when one is confronted with an emergency situation which compels him to act instantly to avoid a collision or injury, and he will not be held liable if he acts as a reasonable man might have done, even though his action may later prove not to have been the wisest choice. Gupton v. McCombs, 74 N.C.App. 547, 328 S.E.2d 886 (1985); Foy v. Bremson, 286 N.C. 108, 209 S.E.2d 439 (1974). The present case clearly warranted such an instruction to the jury. Plaintiff's contention is without merit.

Defendants cross assign as error the fact that the trial court denied defendants' motion to dismiss this action at the end of the evidence. Having resolved the preceding contentions in defendants' favor, we need not address this issue.

No error.

JOHNSON and ORR, JJ., concur.