Barnes v. Horney

101 S.E.2d 315, 247 N.C. 495, 1958 N.C. LEXIS 556

• Court: Supreme Court of North Carolina
• Decided: January 10, 1958
• Docket: 530
• Status: Published

Opinions

Higgins, J.

The plaintiff’s allegations of speed are not supported by evidence. While the plaintiff argues the defendant was driving after dark with lights on dim, it is obvious from the evidence, however, the defendant was operating his car with lights on low beam at a speed of about 30 miles per hour on a narrow, crooked, dirt and gravel road. The plaintiff’s evidence is to the effect that as the defendant proceeded along this shaded dirt road he perceived some object in the road at a distance of 20 or 25 feet; that he thought it was a trash box. The evidence discloses the plaintiff was lying parallel with and between the ruts. Whether his head or his feet were in the direction of the defendant’s approach is not disclosed.

If the case were made to turn solely on whether the defendant was negligent, the question might present some difficulty. Negligence is not presumed from the mere fact an accident has occurred. Lane v. Bryan, 246 N.C. 108, 97 S.E. 2d 411; Fleming v. Twiggs, 244 N.C. 666, 94 S.E. 2d 821; Shinault v. Creed, 244 N.C. 217, 92 S.E. 2d 787; Mitchell v. Melts, 220 N.C. 793, 18 S.E. 2d 406. However, the very fact the plaintiff, without sleep for two days and nights, attempted to make his bed in the middle or on the side of a crooked, shaded, dirt road, shows negligence as a matter of law. Holderfield v. Trucking Co., 232 N.C. 623, 61 S.E. 2d 904. A driver of an automobile may anticipate that other travelers will be using the highway and he should be on the lookout for them. However, it would seem to be too much to require him to' anticipate the highway would be used as sleeping quarters. Of course, a pedestrian has the right to use the highway, but a pedestrian is a foot traveler, and the right to walk does not carry with it the right to lie down and go to sleep. One who voluntarily places himself in a position of known peril fails to exercise ordinary care for his own safety. Bogen v. Bogen, 220 N.C. 648, 18 S.E. 2d 162.

The plaintiff, apparently realizing the danger of placing his reliance on the issues of negligence and contributory negligence, contends that the judgment of involuntary nonsuit should be reversed upon the theory the defendant had the last clear chance to avoid the injury. Liability under the last clear chance, or discovered peril, doctrine is predicated, not on any original negligence of the defendant, but upon his opportunity to avoid injury after discovering the perilous position in which another has placed himself. Defendant’s liability is based upon a new act of negligence arising after negligence and contributory negligence have canceled each other out of the case. Liability on the new act arises after the defendant has had sufficient opportunity, in the exercise of ordinary care, to- discover and to appreciate the plaintiff’s perilous position in time to avoid injuring him. Garrenton v. Maryland, 243 N.C. 614, 91 S.E. 2d 596; Wade v. Sausage Co., 239 N.C. 524, 80 S.E. 2d 150; Mount Olive Mfg. Co., v. R. R., 233 N.C. 661, 65 S.E. 2d 379; Holderfield v. Trucking Co., supra; Johnson v. Morris’ Administratrix, (Ky.) 282 S.W. 2d 835.

The evidence in this case is insufficient to show the defendant had the opportunity to avoid the injury after he discovered, or should have discovered, the plaintiff’s perilous position. The judgment of nonsuit entered in the court below at the close of the plaintiff’s evidence is

Affirmed.