Honeycutt v. Bess

259 S.E.2d 798 (1979) 43 N.C. App. 684

Larry Wayne HONEYCUTT
v.
Steven Ted BESS and United Parcel Service, Inc.

No. 7919SC241.

Court of Appeals of North Carolina.

November 20, 1979.

Thomas M. Grady and M. Slate Tuttle, Jr., Kannapolis, for plaintiff-appellee.

James P. Crews and Robert L. Burchette, Charlotte, for defendants-appellants.

ARNOLD, Judge.

Defendants first argue that they were entitled to a directed verdict because plaintiff presented no competent evidence of actionable negligence. It is their position that the only evidence of negligence was the testimony of plaintiff and Harry Boone that plaintiff's truck was stalled in the intersection for some 8 to 10 seconds before it was hit and Boone's testimony that defendant was speeding, and defendant argues that this testimony is "without probative value." We are unpersuaded, however, by defendants' argument that the "physical facts and the immutable laws of physics" show that the pickup truck had to have been in motion from the van's left to its right at the moment of impact. A number of other explanations are possible for the fact that the two vehicles, having collided, did not proceed in a straight line but veered off to the right. This is a distinctly different situation from those in the cases cited by defendants for the proposition that "physical facts speak louder than words." See Mayberry v. Allred, 263 N.C. 780, 140 S.E.2d 406 (1965); State v. Becker, 241 N.C. 321, 85 S.E.2d 327 (1955); Ingram v. Smoky Mountain Stages, Inc., 225 N.C. 444, 35 S.E.2d 337 (1945).

Defendants argue further that there is no probative value in the testimony of Boone and Ira Shoe that after plaintiff was removed from his wrecked truck they observed that the gearshift lever was in park, since, defendants argue, many people had access to the lever and ample reason to move it in trying to extricate plaintiff before the witnesses observed it. We find that this affects only the weight to be given the testimony, and not its admissibility. Moreover, there is other evidence that plaintiff's truck was stopped in the intersection at the time of the collision.

Nor is there merit in defendants' argument that Boone had insufficient opportunity to observe the speed of the oncoming van to make his opinion as to its speed competent. The cases relied upon by defendants are distinguishable upon their facts. See Key v. Woodlief, 258 N.C. 291, 128 S.E.2d 567 (1962); Fleming v. Twiggs, 244 N.C. 666, 94 S.E.2d 821 (1956); Johnson v. Douglas, 6 N.C.App. 109, 169 S.E.2d 505 (1969).

Defendants next argue that they were entitled to a directed verdict because plaintiff's testimony showed that he was contributorily negligent as a matter of law, and upon the evidence the doctrine of last clear chance did not apply. (See Exum v. Boyles, 272 N.C. 567, 158 S.E.2d 845 (1968) for an analysis of the doctrine.) Defendants attempt to distinguish the case of Cockrell v. Cromartie Transport Co., 295 N.C. 444, 245 S.E.2d 497 (1978), but we find that that case is not distinguishable, and that it controls our decision on this point.

In Cockrell the Supreme Court found reversible error in the court's refusal to give a jury instruction upon the doctrine of last clear chance. The evidence in Cockrell, viewed in the light most favorable to the plaintiff there, showed that plaintiff's intestate was driving north on Highway 421, and that when she attempted to make a left turn across the highway her car's engine stalled and the left front of the car drifted across into the southbound lane, where it was struck by a truck driven by defendant. Defendant had been traveling south on Highway 421, and the configuration of the road was such that the deceased's vehicle would have been visible to him 1300 or 1400 feet away. A passenger in deceased's car testified that defendant had not yet come into view when deceased began to make her turn. On these facts the court held that the jury, properly instructed, could have found that the defendant could have avoided the collision by stopping or driving around the car, or that he could have avoided the car if he had not failed to maintain a proper lookout. In the present case the evidence taken in the light most favorable to the plaintiff is very similar: defendant's van was some 1500 feet away when plaintiff's truck began to cross the intersection, and there were no obstructions to defendant's view of the truck. Plaintiff was stalled in defendant's lane for 8 to 10 seconds before the collision. There was no traffic coming toward defendant in the other lane. Upon these facts we find that a jury instruction on last clear chance was proper. Defendants have argued vehemently that the plaintiff had ample opportunity to escape from his peril, but it is a question for the jury whether the plaintiff could have escaped from his peril by the exercise of reasonable care.

This brings us to defendants' argument that the trial court instructed incorrectly on last clear chance. As defendants point out, one element of a finding that a defendant had the last clear chance to avoid an accident is that the plaintiff was in a position of peril from which he could not escape by the exercise of reasonable care. Wade v. Jones Sausage Co., 239 N.C. 524, 80 S.E.2d 150 (1954). The trial court here charged the jury on last clear chance as follows:

The burden of proof on this issue is on the plaintiff and to justify an answer in his favor, the plaintiff must prove by the greater weight of the evidence, the following three things: First, that the plaintiff was in a position of peril from which he could not remove himself by the exercise of reasonable care. Second, that thereafter, the defendant discovered or became aware of plaintiff's position and peril of the plaintiff's incapacity to escape and the defendant had time and means to avoid injury to the plaintiff by the exercise of reasonable care after he discovered or should have discovered the plaintiff's perilous position, and the plaintiff's incapacity to escape from it or in the exercise of reasonable care should have done so, and had the time and means to avoid the injury, but negligently failed to exercise ordinary care to do so. Third, that such failure proximately caused the plaintiff's injury; that the defendant negligently failed to use the available time and means to avoid injury to the endangered plaintiff, for that reason, struck and injured the plaintiff. Finally, as to this last clear chance issue, I instruct you that if the plaintiff has proved and by the greater weight of the evidence, that the plaintiff was in a position of peril, that the defendant Steven Bess, thereafter, discovered or became aware of or in the exercise of reasonable care should have discovered or became aware of plaintiff's position of peril and had or by the exercise of reasonable care, should have had the time and means to avoid the plaintiff's injury, but negligently failed to do so, and that such failure proximately caused the plaintiff's injury, then it would be your duty to answer this issue, yes, in favor of the plaintiff.

We do not find that the trial court's omission of the phrase "from which he could not remove himself by the exercise of reasonable care" in the reiteration of the elements of the doctrine, after a correct and complete enumeration of the elements initially, was sufficiently prejudicial to require a new trial.

Defendants' motions for directed verdict were properly denied, and no prejudicial error occurred in the trial.

No error.

WEBB and WELLS, JJ., concur.