Vernon v. Crist

222 S.E.2d 445 (1976)

28 N.C. App. 631

Rickey Martin VERNON v. Garry Randall CRIST.

No. 7521SC778.

Court of Appeals of North Carolina.

March 3, 1976.

*447 White & Crumpler by Michael J. Lewis, Winston-Salem, for plaintiff.

Hudson, Petree, Stockton, Stockton & Robinson by James H. Kelly, Jr., and W. Thompson Comerford, Jr., Winston-Salem, for defendant.

BROCK, Chief Judge.

This appeal questions the application of the last clear chance doctrine in the wake of Exum v. Boyles, 272 N.C. 567, 158 S.E.2d 845 (1968). In particular we are confronted with the issue of whether the evidence in this case is sufficient to invoke the doctrine of last clear chance.

The doctrine of last clear chance is well established in this jurisdiction; it imposes upon a person the duty to exercise ordinary care to avoid injury to another who has negligently put himself in a position of peril, and who he can reasonably apprehend is unconscious of or inattentive to the peril or unable to avoid the imminent *448 harm. 6 Strong, N.C. Index 2d, Negligence § 12, p. 30. The practical effect of the doctrine is to enable a plaintiff to recover from a defendant who, by exercising reasonable care and prudence, could have avoided the injury 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. (citations omitted)" Earl v. Wyrick, 286 N.C. 175, 209 S.E.2d 469 (1974). In short the doctrine applies when the evidence indicates that the defendant's failure to exercise his "last clear chance" to avoid the injurynot the contributory negligence of the plaintiffis or could be adduced by a jury to be the proximate cause of the injury.

According to plaintiff's evidence, the car he was leaning against was driven forward without warning and before he had an opportunity to dislodge himself from the car. Assuming this version of the facts to be true, there is no evidence of contributory negligence on the part of the plaintiff, and the defendant's conduct in driving forward without warning, if found negligent by a jury, would render the defendant liable for plaintiff's injuries. Clearly, in the absence of evidence of contributory negligence by the plaintiff, the doctrine of last clear chance does not apply. Thus it was not error to refuse to instruct on the doctrine of last clear chance with respect to plaintiff's evidence.

Defendant's version of the facts is more problematic. Assuming the fifteen to twenty second interval between the time the car was started and driven forward did occur, a jury could find plaintiff contributorily negligent for failing to get away from the car while he had the chance. In addition there is evidence of negligence on the part of defendant for driving the car forward with full knowledge that the plaintiff was sitting precariously on the trunk of the car. Finally, the evidence discloses the following: (1) as the car drove forward, plaintiff was in a position of peril and unable to ameliorate the danger by his own action; (2) defendant knew or should have known in the exercise of ordinary care that plaintiff was in a position of helpless peril; (3) defendant had the opportunity to avoid the harm to plaintiff by stopping the car; and (4) defendant's failure to stop caused plaintiff's injuries.

In this case the defendant's "original negligence," whether based on the act of initially driving the car forward or subsequently failing to stop the car, coincides with defendant's failure to utilize the "last clear chance" to avoid injury to plaintiff. Prior to Exum v. Boyles, supra, it was generally accepted that the doctrine of last clear chance only applied when both the plaintiff and defendant were negligent and after the respective negligences had created the hazard, the defendant had time to avoid the injury. McMillan v. Horne, 259 N.C. 159, 130 S.E.2d 52 (1963). In other words, where the doctrine was applicable, recovery was not predicated on the original negligence of defendant because the original negligence of defendant was barred by plaintiff's contributory negligence and could not be made the basis for the application of the doctrine. For discussion of doctrine prior to Exum v. Boyles, see 6 Strong, N.C. Index 2d, Negligence § 12, p. 32. However, the requirement that the basis of last clear chance be totally distinct from acts of "original negligence" and that both must exist to invoke the doctrine of last clear chance was forcefully overruled in Exum v. Boyles, supra:

"In several of our former decisions the statement appears that the `original negligence' of a defendant cannot be relied upon to bring into play the last clear chance doctrine since this `original negligence' is cancelled or nullified by the plaintiff's contributory negligence. See: Mathis v. Marlow, 261 N.C. 636, 135 S.E.2d 633; Barnes v. Horney, 247 N.C. 495, 101 S.E.2d 315; Ingram v. Smoky Mountain Stages, Inc., supra [225 N.C. *449 444, 35 S.E.2d 337]. We think this is an inaccurate statement and we no longer approve it, although the decisions in those cases were correct applications of the doctrine. In each of those cases, it is clear that what the court held was that to 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. Thus, in Wanner v. Alsup, supra [265 N.C. 308, 144 S.E.2d 18], and in Wade v. Jones Sausage Co., supra [239 N.C. 524, 80 S.E.2d 150], the defendants were not shown to have been negligent in the operation of their vehicles except in their respective failures to turn aside from their straight lines of travel in order to avoid striking the respective plaintiffs, one a pedestrian crossing the street, the other a man lying in the highway. Likewise, the doctrine may render liable a driver whose only, i. e., `original' negligence was a failure to apply his brakes and stop his vehicle before striking a plaintiff whom he saw lying in the street."

In our opinion the evidence in this case is sufficient to invoke the doctrine of last clear chance. Indeed, Exum v. Boyles, supra, compels it. It was prejudicial error not to instruct the jury on the doctrine of last clear chance.

New trial.

PARKER and ARNOLD, JJ., concur.