Watson v. White

• Decision Date: 03 November 1983
• Docket Number: No. 53A83,53A83
• Court: North Carolina Supreme Court
• Parties: Cebus WATSON v. Juanita Jackson WHITE and Leroy White.

Page 268

308 S.E.2d 268

309 N.C. 498

Cebus WATSON v. Juanita Jackson WHITE and Leroy White.

No. 53A83.

Supreme Court of North Carolina.

Nov. 3, 1983.

Moore, Ragsdale, Liggett, Ray & Foley, P.A. by Jane Flowers Finch, Raleigh, for defendants-appellants.

Blanchard, Tucker, Twiggs, Denson & Earls, P.A. by Douglas B. Abrams, Raleigh, for plaintiff-appellee.

MEYER, Justice.

Defendants contend that, on the facts in the record before us, the Court of Appeals erred in holding that plaintiff was entitled to an instruction on the issue of last clear chance. ¹ Defendants argue that the source of the error lies in a misstatement of the law of last clear chance. The Court of Appeals enunciated the law as follows:

The elements of the doctrine of last clear chance are the following: (1) plaintiff, by his own negligence, placed himself in a position of peril (or a position of peril to which he was inadvertent); (2) defendant saw, or by the exercise of reasonable care should have seen, and understood the perilous position of plaintiff; (3) defendant should have seen or discovered plaintiff's perilous condition in time to have avoided injuring him; (4) notwithstanding such notice, defendant failed or refused to use every reasonable means at his command to avoid the impending injury; and (5) plaintiff was injured as a result of defendant's failure or refusal to avoid the impending injury. Wray v. Hughes, 44 N.C.App. 678, 262 S.E.2d 307, review denied, 300 N.C. 203, 269 S.E.2d 628 (1980).

60 N.C.App. at 109, 298 S.E.2d at 176 (emphasis added). It is to the underlined portion of this statement of the law that defendants particularly object.

The opinion below also cited as authority the Restatement of Torts, Second, as follows:

§ 479. Last Clear Chance: Helpless Plaintiff. A plaintiff who has negligently subjected himself to a risk of harm from the defendant's subsequent negligence may recover for harm caused thereby if, immediately preceding the harm,

(a) the plaintiff is unable to avoid it by the exercise of reasonable vigilance and care, and

(b) the defendant is negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm, when he

(i) knows of the plaintiff's situation and realizes or has reason to realize the peril involved in it or

(ii) would discover the situation and thus have reason to realize the peril, if he were to exercise the vigilance which it is then his duty to the plaintiff to exercise. (Emphasis added.)

60 N.C.App. at 111, 298 S.E.2d at 177.

The Court of Appeals, applying the above-quoted law to the facts, then held that the trial court erred in failing to submit the issue of last clear chance to the jury, stating that:

The evidence in this case tended to show that the road in front of the grocery store was well lit, defendant could have had an unobstructed view of plaintiff as he crossed the road in defendant's lane, plaintiff was hit when he was either at the edge of the road or on the shoulder, and defendant's right front fender was damaged in the collision. This evidence would permit the jury to find that if defendant had kept a proper lookout she could have avoided the accident by swerving slightly to her left. Indeed, this is most likely the basis upon which the jury found defendant negligent. Having found both plaintiff and defendant negligent, the jury should have then been allowed to consider whether defendant should have seen plaintiff's perilous condition in time to avoid striking him, and whether defendant used every reasonable means at her command to avoid the impending injury.

Id. at 111-12, 298 S.E.2d at 177-78.

We agree with defendants that the Court of Appeals erred, at least to the extent that it relied solely on the language from Wray v. Hughes, 44 N.C.App. 678, 682, 262 S.E.2d 307, 310, disc. rev. denied, 300 N.C. 203, 269 S.E.2d 628 (1980), that defendant "should have so seen or discovered plaintiff's perilous condition in time to have avoided injuring him." The test as applied by the Court of Appeals, in focusing on whether the defendant should have seen plaintiff's perilous condition in time to avoid striking him, failed to take into account whether defendant had, within her then existing ability, the time and means to avoid harming the plaintiff.

In Exum v. Boyles, 272 N.C. 567, 576, 158 S.E.2d 845, 853 (1968), we stated with respect to the doctrine of last clear chance that

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.

(Emphasis added.)

In Clodfelter v. Carroll, 261 N.C. 630, 634-35, 135 S.E.2d 636, 639 (1964), we stated that an injured pedestrian found to be contributorily negligent must establish four elements in order to invoke the doctrine of last clear chance against the driver of the motor vehicle which struck and injured him. These are:

(1) That the pedestrian negligently placed himself in a position of peril from which he could not escape by the exercise of reasonable care; (2) that the motorist knew, or by the exercise of reasonable care could have discovered, the pedestrian's perilous position and his incapacity to escape from it before the endangered pedestrian suffered injury at his hands; (3) that the motorist had the time and means to avoid injury to the endangered pedestrian by the exercise of reasonable care after he discovered, or should have discovered, the pedestrian's perilous position and his incapacity to escape from it; and (4) that the motorist negligently failed to use the available time and means to avoid injury to the endangered pedestrian, and for that reason struck and injured him.

(Emphasis added.)

We now determine whether the plaintiff in the present case has established the four elements enumerated in Clodfelter and applied in Exum, and therefore is entitled to an instruction on last clear chance. First, it is reasonable to conclude that the plaintiff could not have, by the exercise of reasonable care, extricated himself from the position of peril into which he had negligently placed himself. Plaintiff apparently did not see defendants' oncoming vehicle; he determined that he could cross the highway in safety; and as a result, he placed himself in a position of peril. Unlike the facts in Clodfelter v. Carroll, 261 N.C. 630, 135 S.E.2d 636, plaintiff never saw defendants' vehicle and therefore could not reasonably have been expected to act to avoid injury. Thus the first element of the Clodfelter test is satisfied.

Secondly, as we noted in Exum v. Boyles, 272 N.C. at 576, 158 S.E.2d at 852, the doctrine of last clear chance imposes liability upon a defendant who did not actually know of the plaintiff's peril, as the facts here tend to disclose, "if, but only if, the defendant owed a duty to the plaintiff to maintain a lookout and would have discovered his situation had such a lookout been maintained." In Exum we added that "a motorist upon the highway does owe a duty to all other persons using the highway, including its shoulders, to maintain a lookout in the direction in which the motorist is traveling." 272 N.C. at 576, 158 S.E.2d at 852-53. Finally, in Exum, we termed as "inaccurate" those decisions which appeared to hold 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." 272 N.C. at 576, 158 S.E.2d at 853.

With these principles in mind, it is reasonable to conclude that defendant owed a duty to the plaintiff to maintain a proper lookout; that defendant was originally negligent in failing to keep a proper lookout; and that although not knowing of plaintiff's peril, defendant, by the exercise of reasonable care, could have discovered plaintiff's perilous position. The second element of the Clodfelter test is thus satisfied.

We hold, however, as a matter of law, that plaintiff has failed to establish the third element necessary to invoke the doctrine of last clear chance; that is, that defendant had the time and the means to avoid the injury to the plaintiff by the exercise of reasonable care after she discovered or should have discovered plaintiff's perilous position.

In the case sub judice the defendant had neither the time nor the means to avoid the injury: As defendant approached the Community Grocery store, she was traveling at a speed of approximately 40 m.p.h., well within the authorized speed limit. She could not have discovered plaintiff's perilous position until she drove out of the curve, a distance of some 75 feet from the store. There is some factual dispute as to whether plaintiff began crossing the highway before or after defendants' vehicle emerged from the curve. In any event, assuming defendant discovered plaintiff's perilous position immediately upon exiting the curve, the maximum amount of time that defendant had to avoid the injury was approximately 1.28 seconds--the time it took defendant to travel the full 75 feet at a speed of 40 m.p.h. In Mathis v. Marlow, 261 N.C. 636, 639, 135 S.E.2d 633, 635 (1964), we stated that the doctrine of last clear chance is invoked "only in the event it is made to appear that there was an appreciable interval of time between the 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." Where there is no evidence that a person exercising a proper lookout would have been able, in the exercise of reasonable care, to avoid the collision, the doctrine of last clear chance does not...