Mathis v. Marlow , 261 N.C. 636 ( 1964 )

135 S.E.2d 633 (1964) 261 N.C. 636

John Sherman MATHIS
v.
Walter Gaston MARLOW.

No. 378.

Supreme Court of North Carolina.

April 15, 1964.

T. R. Bryan and Ferree & Brewer, Wilkesboro, for appellee.

Hayes & Hayes, North Wilkesboro, for appellant.

DENNY, Chief Justice.

The decisive question on this appeal is whether or not the evidence was sufficient to take the case to the jury on the third issue.

There is nothing in the evidence which tends to show that the defendant's automobile moved more than a few feet after the traffic signal changed before it came in contact with the plaintiff. Likewise, the evidence is clearly to the effect that the driver of the defendant's car stopped the car immediately upon seeing the plaintiff in front of him. The plaintiff testified that the Marlow car was still when he stepped into the street. The driver of defendant's car was not guilty of negligence by stopping in a line of vehicular traffic at a red traffic signal. It would seem that the only negligence, if any, on the part of the driver of the defendant's car was in starting the car after the light changed without ascertaining that the movement could be made in safety. If negligence in this respect be conceded, it would necessarily have to be the negligence upon which the jury answered the first issue in the affirmative.

We do not think the evidence before us places the plaintiff in a perilous position until it was too late for the doctrine of last clear chance to be invoked. "The doctrine is clearly inapplicable where the peril and defendant's discovery of the peril or his duty to discover it arose so shortly before the accident as to afford him no opportunity by the exercise of the greatest possible diligence, to avoid the injury. The doctrine contemplates a last ``clear' chance, not a last ``possible' chance, to avoid the accident; it must have been such a chance as would have enabled a reasonably prudent man in like position to have acted effectively." 65 C.J.S. Negligence § 137 e, page 774 et seq.

The original or primary negligence of a defendant, which would warrant answering the first issue in the affirmative, cannot be relied upon by the plaintiff to recover under the last clear chance doctrine. A recovery on the original negligence is barred in such cases by the plaintiff's contributory negligence. The plaintiff's right to recover, notwithstanding his own negligence, must arise out of a factual situation which gave the defendant an opportunity, through the exercise of reasonable care, to have avoided the injury to him but failed to do so. Aydlett v. Keim, 232 N.C. 367, 61 S.E.2d 109; Mount Olive Manufacturing Co. v. Atlantic Coast Line R. R., 233 N.C. 661, 65 S.E.2d 379; Wade v. Jones Sausage Co., 239 N.C. 524, 80 S.E.2d 150; Irby v. Southern R. R., 246 N.C. 384, 98 S.E.2d 349, 70 A.L.R. 2d 1; Gunter v. Winders, 256 N.C. 263, 123 S.E.2d 475; McMillan v. Horne, 259 N.C. 159, 130 S.E.2d 52.

In McMillan v. Horne, supra, Higgins, J., speaking for the Court, said: "Ordinarily the last clear chance involves the conduct of a defendant after his negligence and the plaintiff's contributory negligence have had their play, still leaving the defendant time and opportunity to avoid the injury notwithstanding what both parties have previously done, or failed to do. In essence, the issue is one of proximate cause."

In the case of Ingram v. Smoky Mountain Stages, 225 N.C. 444, 35 S.E.2d 337, Barnhill, J., later C. J., said: "Its application (the last clear chance) is invoked only in the event it is made to appear that there was an appreciable interval of time between plaintiff's negligence and his injury during which the defendant, by the exercise of ordinary care, could or should have avoided the effect of plaintiff's prior negligence. (Citations omitted.)

"Plaintiff may not recover on the original negligence of defendant for such recovery is barred by his own negligence. The duty resting on the defendant, the breach of which imposes liability under the doctrine, arises after the plaintiff has placed himself in a perilous position and (it) is the duty (of the defendant), after notice express or implied, of plaintiff's situation, to exercise reasonable care to avoid the impending injury. It is what defendant negligently did or failed to do after plaintiff put himself in peril that constitutes the breach of duty for which defendant is held liable."

In our opinion, the trial court committed error in submitting the third issue and we so hold. This issue will be stricken, leaving the issue of damages without support. The answer to that issue also will be stricken.

The case is remanded to the Superior Court of Wilkes County where judgment will be entered on the issues of negligence and contributory negligence, denying recovery and dismissing the action.

Error and remanded.