Ingram v. Smoky Mountain Stages
| Decision Date | 10 October 1945 |
| Docket Number | 89 |
| Parties | INGRAM et al. v. SMOKY MOUNTAIN STAGES, Inc., et al. |
| Court | North Carolina Supreme Court |
At about 7 p. m. on March 27, 1944, an automobile operated by plaintiffs' intestate and a bus of the corporate defendant operated by defendant Swink collided at the intersection of the Brevard-Asheville highway and an abandoned section of road now used as a private way leading from the home of one Brooks to the public highway and known as the Brooks road. The bus was traveling toward Asheville and the automobile approached and entered the highway to the right of the bus. The collision occurred to the left of the center of the highway--the evidence varies as to just how far to the left. The bus stopped within the intersection over the point of collision. The car proceeded across the highway, down an 8 or 10 foot embankment and stopped about 24 feet from the point of collision with its motor 'wide open.'
There were skid marks 3 or 4 feet long, made by the bus, located 14 or 15 feet from the point of collision.
Plaintiff's intestate, before his death, made a statement which was offered and admitted as a dying declaration. He said: 'he came to the edge of the road there coming from Brooks' that he stopped and looked up and down the road, and did not see or hear a thing. That he started and got well on the road and he heard something. That he looked up the road and here was this great big bus coming as hard as it could. That he knew that the only thing in the world he could do was to get on the side of the road where he belonged and he got just as far as he could, and the last thing he knew it was coming on him, right at him * * *. He said it was right on him coming right at him, and that he knew he was a 'goner.' * * * and he got as far on his side of the road as he could, going toward Brevard.'
This is the only evidence in the nature of an eye-witness account offered by the plaintiff.
Witnesses for defendants, the bus driver and passengers on the bus said that the bus rounded the curve 300 or 400 feet from the intersection at about 30 or 35 m. p. h.; that they saw the car approach the road when the bus was about 90 feet from the intersection and the bus driver blew his horn several times, applied his brakes, and slowed to 10 or 15 m. p. h. The car 'hesitated a moment like it was going to stop,' 'was fixing to stop,' 'almost stopped,' 'stopped,' and when the bus got within 10 or 15 feet of the intersection the car 'shot right out in front of the bus,' 'came out on the road suddenly,' 'all at once dashed out in front of the bus.' When the car shot out in the road the bus driver again applied his brakes and cut to the left, and the collision occurred to the left of the center of the highway. The bus did not travel over 2 or 3 feet after the collision. The bus was about three lengths away when the car entered the road.
The plaintiff in his reply alleges that notwithstanding the negligence of the deceased, if any, the defendant 'by refraining from the negligent acts and omissions alleged in the complaint' could have avoided the injury and thus had the last clear chance to do so.
Issues of (1) negligence, (2) contributory negligence, (3) last clear chance, and (4) damages were submitted to the jury which answered the first three issues 'yes' and assessed damages. The court entered judgment on the verdict and defendants excepted and appealed.
Smathers & Meekins, of Asheville, for appellants.
Don C. Young and Chas. G. Lee, Jr., both of Asheville, for appellees.
The plaintiff's cause of action as alleged in the complaint is bottomed upon the allegation that the deceased had crossed the highway, reached his side, turned to the left, and was proceeding in a northwesterly direction, meeting the bus when the bus suddenly cut to the left across the center line and collided with his car. There is no evidence in the record to sustain the allegations thus made. They are directly contradicted by the statement of the deceased himself.
The cause was tried on the theory plaintiff had alleged that the bus driver was guilty of negligence in that (1) he was traveling at an excessive rate of speed and (2) he cut his bus to the left of the center of the road in violation of G.S. ss 20-146 and 20-148.
The defendants objected and excepted to the submission of the last clear chance issue. They here stress the assignment of error based on this exception for that there is no evidence in the record to support an affirmative answer thereto. This exception must be sustained.
The doctrine of last clear chance, otherwise known as the doctrine of discovered peril, is accepted law in this State. It is this: The contributory negligence of the plaintiff does not preclude a recovery where it is made to appear that the defendant, by exercising reasonable care and prudence, might have avoided the injurious consequences to the plaintiff, notwithstanding plaintiff's negligence; that is, that by the exercise of reasonable care defendant might have discovered the perilous position of the party injured or killed and have avoided the injury, but failed to do so. Haynes v. Southern R. Co., 182 N.C. 679, 110 S.E. 56, and cases cited; Redmon v. Southern R. Co., 195 N.C. 764, 143 S.E. 829; Caudle v. Seaboard Air Line R. Co., 202 N.C. 404, 163 S.E. 122; Jenkins v. Southern R. Co., 196 N.C. 466, 146 S.E. 83; Taylor v. Rierson, 210 N.C. 185, 185 S.E. 627.
The practical import of the doctrine is that a negligent defendant is held liable to a negligent plaintiff if the defendant, being aware of plaintiff's peril, or in the exercise of due care should have been aware of it in time to avoid injury, had in fact a later opportunity than the plaintiff to avoid the accident. 38 Am.Jur. 901.
Peril and the discovery of such peril in time to avoid injury constitutes the backlog of the doctrine. Miller v. Southern R. Co., 205 N.C. 17, 169 S.E. 811; Hunter v. Bruton, 216 N.C. 540, 5 S.E.2d 719. It presupposes negligence on the part of defendant and contributory negligence on the part of the party injured or killed which, in the absence of the doctrine, would preclude recovery in spite of defendant's negligence. Redmon v. Southern R. Co., supra; Cummings v. Atlantic Coast Line R. Co., 217 N.C. 127, 6 S.E.2d 837; Mercer v. Powell, 218 N.C. 642, 12 S.E.2d 227. Its application 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. Bailey v. North Carolina R. Co., 223 N.C. 244, 25 S.E.2d 833; Hudson v. Norfolk Southern R. Co., 190 N.C. 116, 129 S.E. 146.
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 is the duty, 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.
To sustain the plea it must be made to appear that (1) plaintiff by his own negligence placed himself in a dangerous situation; (2) the defendant saw, or by the exercise of reasonable care should have discovered, the perilous position of plaintiff, (3) in time to avoid injuring him; and (4) notwithstanding such notice of imminent peril negligently failed or refused to use every reasonable means at his command to avoid the impending injury, (5) as a result of which plaintiff was in fact injured. Cullifer v. Atlantic Coast Line R. Co., 168 N.C. 309, 84 S.E. 400; Fry v Southern Public Utilities Co., 183 N.C. 281, 111 S.E. 354; Haynes v. Southern R. Co., supra; Redmon v. Southern R....
To continue reading
Request your trial