Gunter v. Winders , 256 N.C. 263 ( 1962 )

123 S.E.2d 475 (1962) 256 N.C. 263

Wesley C. GUNTER
v.
William R. WINDERS, Guardian Ad Litem for Billy Ray Allen, Oran J. Cottle, Horace Junior Efrid, and Miller Motor Express, Inc.

No. 670.

Supreme Court of North Carolina.

January 12, 1962.

Daniel K. Edwards, Durham, for plaintiff-appellant.

Bryant, Lipton, Strayhorn & Bryant, Victor S. Bryant, Jr., Durham, for defendants William R. Winders, Guardian Ad Litem for Billy Ray Allen, and Oran J. Cottle, appellees.

HIGGINS, Justice.

The plaintiff assigns as error the failure of the court (1) to submit an issue of last clear chance and (2) to charge correctly with respect to the causal relationship between the plaintiff's contributory negligence and his own injury. Actually the two propositions involve the same legal concept of liability—the proximate cause of the injury.

The last clear chance doctrine is applicable when, notwithstanding the defendant's prior negligence and the plaintiff's contributory negligence, the defendant by the exercise of due care is afforded an opportunity to avoid the injury and negligently fails to take advantage of that opportunity. "Liability under the last clear chance, or discovered peril doctrine, is predicated not on any original negligence of the defendant but upon his opportunity to avoid the injury after discovering the perilous position in which another has placed himself. Defendant's liability is based upon a new act of negligence arising after negligence and contributory negligence have canceled each other * * * Liability on the new act arises after the defendant has had sufficient opportunity, in the exercise of due care, to discover and appreciate the plaintiff's perilous position in time to avoid injuring him." Barnes v. Horney, 247 N.C. 495, 101 S.E.2d 315, citing many cases.

The plaintiff pleaded last clear chance. However, the evidence was insufficient to permit any inference favorable to the plaintiff on that issue. The evidence discloses the negligence and contributory negligence were active in their harmful effects and continued to the accident and injury. To justify the submission of an issue it must not only arise on the pleadings, but it must be supported by competent evidence. Cathey v. Shope, 238 N.C. 345, 78 S.E.2d 135. The exceptions to the charge and to the failure of the court to submit an issue on last clear chance are without merit. The record presents

No error.