Crisp v. Cobb

331 S.E.2d 255 (1985)

David McCoy CRISP v. William Henry COBB.

No. 842DC836.

Court of Appeals of North Carolina.

July 2, 1985.

James R. Vosburgh, Washington, for plaintiff-appellant.

Rodman, Holscher & Francisco by Edward N. Rodman, Washington, for defendant-appellee.

PHILLIPS, Judge.

Of the two issues raised by this appeal the first is whether the court erred in concluding that defendant was not negligent in bringing about the collision sued for and that the doctrine of last clear chance does not apply. We are of the opinion that he did not and affirm the judgment.

Like a jury, the judge was at liberty to pick and choose from the evidence as he saw fit, and the findings and conclusions made are supported by recorded evidence which the court converted into findings of fact somewhat to the following effect: Plaintiff's car was situated diagonally across the center line of the highway at night, partially blocking both lanes; defendant, rounding a gradual curve at approximately fifty miles per hour, did not see that plaintiff's car was blocking his lane of travel until he was about one hundred feet away, and was unable to turn to either side because a large ditch was on one side and plaintiff and other people were on the other; defendant's car skidded into plaintiff's car while traveling approximately *256 twenty miles an hour. These findings support the conclusion that defendant was not negligent. Having concluded defendant was not negligent, the ruling that the doctrine of last clear chance had no application necessarily followed as a matter of course. Clodfelter v. Carroll, 261 N.C. 630, 135 S.E.2d 636 (1964). No finding was made that defendant saw or should have seen plaintiff's car when far enough away to have stopped his car before the collision, and since fact finders have great leeway in determining what facts have been proven, we cannot say from the record that such a finding was required.

The other issue presented is whether the court erred in allowing defendant reasonable attorney fees. Since this is a property damage suit in which the damages recovered are less than $5,000, the award of attorneys fees was authorized by G.S. 6-21.1. And since the suit is not on an insurance policy a finding that plaintiff's refusal to pay was unwarranted was not required. Rogers v. Rogers, 2 N.C.App. 668, 163 S.E.2d 645 (1968).

Affirmed.

ARNOLD and COZORT, JJ., concur.