Earle v. Wyrick ( 1974 )

209 S.E.2d 469 (1974) 286 N.C. 175

Samuel W. EARLE, Administrator of the Estate of Julianne Earle, Deceased
v.
Louise Martin WYRICK.

No. 67.

Supreme Court of North Carolina.

November 26, 1974.

Schoch, Schoch, Schoch & Schoch by Arch K. Schoch, High Point, John T. Manning, Greensboro, for plaintiff-appellant.

Jordan, Wright, Nichols, Caffrey & Hill by Welch Jordan and Karl N. Hill, Jr., Greensboro, for defendant-appellee.

HIGGINS, Justice.

By agreement of the parties, the jury's finding of negligence on the part of the defendant and the contributory negligence of the plaintiff's intestate are deemed to be established and no question is raised by either party on this appeal with respect to either issue. Nothing else appearing, these findings would be conclusive against the plaintiff's right to recover in the absence of a further issue and finding that the negligent defendant by exercising reasonable care and prudence might have avoided the accident and its injurious consequences to the plaintiff's intestate by the exercise of due care and prudence after the perilous position of intestate was, or should have been, discovered in time to take evasive action.

It is generally held in this State that the contributory negligence of a plaintiff does not preclude recovery where it is made to appear that the defendant by exercising reasonable care and prudence could have avoided the injurious consequences to the plaintiff, notwithstanding plaintiff's negligence. The doctrine applies if and when it is made to appear that the defendant discovered, or by the exercise of reasonable care should have discovered, the perilous position of the party injured or killed and could have avoided the injury, but failed to do so. Exum v. Boyles, 272 N.C. 567, 158 S.E.2d 845; Wanner v. Alsup, 265 N.C. 308, 144 S.E.2d 18; Redmon v. R. R., 195 N.C. 764, 143 S.E. 829; Haynes v. R. R., 182 N.C. 679, 110 S.E. 56; Thacker v. Harris, 22 N.C.App. 103, 205 S.E.2d 744.

Peril and the discovery of such peril in time to avoid injury constitutes the backlog of the doctrine of last clear chance. Exum v. Boyles, supra; Wanner v. Alsup, supra; Williams v. Henderson, 230 N.C. 707, 55 S.E.2d 462; Ingram v. Smoky Mountain Stages, Inc., 225 N.C. 444, 35 S.E.2d 337; Hunter v. Bruton, 216 N.C. 540, 5 S.E.2d 719; Miller v. R. R., 205 N.C. 17, 169 S.E. 811.

In this case, two young girls, age thirteen, were walking on the hard surface of a paved street thirty feet wide on the outskirts of Greensboro. There was no sidewalk on either side of the street. One of the little girls was barefooted. Between the homes of the two girls there was a pine tree with large pine cones on the ground at the curb. Also between the homes was an abandoned alley leading off Cornwallis Drive. This alley contained discarded cans, broken bottles, etc. This evidence was offered indicating the reason why the girls, one barefoot, were walking on rather than off the street surface. The plaintiff's evidence disclosed that the part of the street where the accident occurred was well lighted.

In answer to the interrogatories submitted to the defendant she stated she was driving 25 to 30 miles an hour, but that she saw the girls only a split second before the impact. The defendant did not offer evidence at the trial. All the evidence indicates the defendant failed to sound the horn.

The appeal here presents the sole question: Was the evidence sufficient to warrant the submission of the issue of last clear chance and to sustain a jury finding in favor of the plaintiff on that issue? After careful review, we conclude that the plaintiff did offer sufficient evidence. The court committed error of law in not submitting the tendered issue.

The decision of the Court of Appeals finding no error in the trial is reversed. The case will be remanded to the Superior Court of Guilford County for the jury's answer to the issue tendered which the court refused to submit. An answer by the jury favorable to the plaintiff on that issue would then require the jury to pass on the issue of damages.

Reversed and remanded.

BOBBITT, C. J., not sitting.