Stephens v. Mann , 50 N.C. App. 133 ( 1980 )

272 S.E.2d 771 (1980)

Daisey STEPHENS
v.
Judith Brame MANN.

No. 8010SC435.

Court of Appeals of North Carolina.

December 16, 1980.

Sanford, Adams, McCullough & Beard by J. Allen Adams and Charles C. Meeker, Raleigh, for plaintiff-appellant.

Teague, Campbell, Conely & Dennis by Richard B. Conely and George W. Dennis III, Raleigh, for defendant-appellee.

HARRY C. MARTIN, Judge.

Plaintiff's sole assignment of error is the trial court's refusal to submit to the jury the issue of last clear chance. The doctrine of last clear chance allows a plaintiff to recover despite his own contributory negligence when the defendant could have avoided plaintiff's injuries by exercising reasonable care and prudence, after plaintiff's negligence had occurred, but failed to do so. Earle v. Wyrick, 286 N.C. 175, 209 S.E.2d 469 (1974), rehearing denied, 286 N.C. 547 (1975). The issue of last clear chance must be submitted to the jury if the evidence, viewed in the light most favorable to the plaintiff, will support a reasonable inference of each essential element of the doctrine. Cockrell v. Transport Co., 295 N.C. 444, 245 S.E.2d 497 (1978). However, "``[n]o issue with respect thereto must be submitted to the jury unless there is evidence to support it ....'" Presnell v. Payne, 272 N.C. 11, 13, 157 S.E.2d 601, 602 (1967). The burden is on the plaintiff to establish that the doctrine of last clear chance is applicable to the facts of his case. Vernon v. Crist, 291 N.C. 646, 231 S.E.2d 591 (1977).

It is true, as plaintiff points out, that the North Carolina courts have liberalized the application of last clear chance in recent years. In Presnell, supra, Justice Higgins held that the doctrine may apply whether plaintiff's contributory negligence is a matter of law or a question of fact for the jury. In Exum v. Boyles, 272 N.C. 567, 158 S.E.2d 845 (1968), the Supreme Court decided that contributory negligence would no longer nullify or cancel defendant's "original negligence" to bar application of last clear chance. In Exum Justice Lake observed that the doctrine of last clear chance is not a single rule, but a series of rules which differ depending on the factual situation.

[T]o bring into play the doctrine of the last clear chance, there must be proof that after the plaintiff 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. The only negligence of the defendant may have occurred after he discovered the perilous position of the plaintiff. Such "original negligence" of the defendant is sufficient to bring the doctrine of the last clear chance into play if the other elements of that doctrine are proved.

Id. at 576-77, 158 S.E.2d at 853.

In Wray v. Hughes, 44 N.C.App. 678, 262 S.E.2d 307, disc. rev. denied, 300 N.C. 203, 269 S.E.2d 628 (1980), Chief Judge Morris summarized the elements of last clear chance as follows:

It is well established that in order to submit the issue of last clear chance to the jury, the evidence must tend to show the following elements: (1) that plaintiff, by his own negligence, placed himself in a position of peril (or a position of peril to which he was inadvertent); (2) that defendant saw, or by the exercise of reasonable care should have seen, and understood the perilous position of plaintiff; (3) that he should have so seen or discovered plaintiff's perilous condition in time to have avoided injuring him; (4) that notwithstanding such notice defendant failed or refused to use every reasonable means at his command to avoid the impending injury; and (5) that as a result of such failure or refusal plaintiff was in fact injured.

Id. at 681-82, 262 S.E.2d at 309-10.

Thus, the doctrine of last clear chance is not a method of comparing the relative fault of each party, but is related to the determination of proximate cause. See Vernon, supra. It is well noted that under the doctrine, liability is imposed on a defendant only when he has had "a last ``clear' chance, not a last ``possible' chance to avoid injury." Grant v. Greene, 11 N.C. App. 537, 541, 181 S.E.2d 770, 772 (1971). Accord, Wise v. Tarte, 263 N.C. 237, 139 S.E.2d 195 (1964); Wray, supra.

Applying the above stated law to the facts of this case, plaintiff has failed to establish that she had placed herself in a position of helpless peril which defendant saw and understood (or should have seen and understood) and that defendant could have, but did not, avoid the injury to plaintiff.

Plaintiff contends that she placed herself in a position of helpless peril when she climbed into the back of the pickup truck to hold down the unsecured furniture. In oral argument, plaintiff's counsel contended that the last clear chance doctrine came into play when defendant began driving under those circumstances. We do not agree. Although plaintiff may have placed herself in a dangerous position, danger alone is not the equivalent of helpless peril. The evidence does not support a conclusion that once plaintiff entered the loaded truck and it began moving, she could do nothing to protect herself or was inadvertent to her precarious condition. On the contrary, plaintiff testified that she was not holding on to anything as she rode. She was well aware that items had fallen out earlier, as that was the very reason she chose to ride in the back.

Although at trial plaintiff denied hearing defendant warn her of the danger of riding with the furniture, plaintiff now contends that defendant's alleged warning acknowledged her awareness of plaintiff's helpless peril. As we do not find plaintiff to have been in a helpless condition at the time defendant resumed driving, this argument is without merit. Only at the time the mattress began to rise up was plaintiff in a condition from which she could not protect herself. Defendant testified she could not see plaintiff on the back of the truck. There is no evidence to show that at that time defendant was aware of plaintiff's plight, nor that if she had been, she would have had a chance to avoid plaintiff's being thrown from the truck.

Plaintiff urges that her case is similar to the Vernon case, supra. In Vernon, the plaintiff was leaning against or sitting on the trunk of defendant's automobile. Defendant knew of plaintiff's position but started the car without warning as a joke. Plaintiff was unaware that defendant was in the car or that the vehicle would be moving forward. When it started, plaintiff fell and struck his head. The Court held that there was sufficient evidence of each element of last clear chance to submit the issue to the jury. Unlike the plaintiff in Vernon, plaintiff in the present case knew that the vehicle would be driven forward.

The situation in the case sub judice is more closely analogous to that in Peeler v. Cruse, 14 N.C.App. 79, 187 S.E.2d 396 (1972). There plaintiff fell from a motor grader while standing on a scraping blade. The machine slowed down and plaintiff released his grip. When the vehicle regained speed, plaintiff lost his balance and was run over by the grader. The Court stated: "When plaintiff got on the narrow blade, he assumed all of the natural risks incident to riding in such a dangerous position, including the risk that the machine would not be operated at a constant speed at all times and the risk that it might ``jerk' as he had observed it do on other occasions." Id. at 82, 187 S.E.2d at 398.

The other cases cited by plaintiff in support of her argument, Exum, supra, Earle, supra, and Cockrell, supra, are inapposite to the present case. In each of those cases there was evidence that the defendant had a clear and unobstructed view of the plaintiff, who was unable to extricate himself from his helpless position. Exum involved a plaintiff's intestate who was changing a tire of a car parked on the shoulder of a road and was struck by defendant's automobile. In Earle, defendant's vehicle struck a pedestrian walking in the street at night. The plaintiff of Cockrell was in a stalled automobile which was struck by an oncoming truck. In each of these cases the Supreme Court held that the doctrine of last clear chance was applicable, because there was evidence that the defendant could have seen the plaintiff and avoided the injury. In the present case, plaintiff was behind defendant and out of her view. Judge Herring properly refused to submit the issue of last clear chance to the jury. The assignment of error is overruled.

With this holding, it is unnecessary to discuss defendant's assignment of error regarding the trial court's refusal to grant her motions for directed verdict.

No error.

MORRIS, C. J., and WEBB, J., concur.