Edens v. CAROLINA FREIGHT CARRIERS CORPORATION

100 S.E.2d 878, 247 N.C. 391, 1957 N.C. LEXIS 701

• Court: Supreme Court of North Carolina
• Decided: December 11, 1957
• Docket: 604
• Status: Published

Opinion

Per Curiam.

Plaintiff, whose testimony related primarily to her injuries and damages, testified that she had no recollection of what occurred from 7 a.m., the morning of February 14, 1953, until she regained consciousness (after the collision) in the hospital that afternoon. The evidence offered by plaintiff as to what occurred on the occasion of the collision was the testimony of the investigating Highway Patrolman, portions of the adverse examination of defendant Smith and the testimony of an engineer as to conditions at the intersection, particularly the distances each driver could have observed a vehicle on the intersecting highway at several stated points in their respective lines of travel.

There was no evidence to support plaintiff’s allegation that, prior to crossing Highway 68, she exercised due care to observe and did observe that there was “no vehicle within a distance which mighb reasonably be expected to menace her safety in crossing Highway 68.” Indeed, the evidence tends to show that when plaintiff entered the intersection the tractor-trailer was then not more than 27 feet and 6 inches from her line of travel.

When considered in relation to the fact that Highway 68 was the dominant highway, G.S. 20-158, and the fact that the tractor-trailer was approaching from her right, the only conclusion that may be reasonably drawn from the evidence is that plaintiff failed to exercise due care to yield the right of way but instead negligently drove directly across the path of the tractor-trailer. Indeed, plaintiff, in her brief, makes no contention that she was not guilty of contributory negligence.

Irrespective of Smith’s negligence, if any, unquestionably plaintiff’s negligence was a proximate cause of collision. This suffices to bar recovery herein.

The doctrine of last clear chance, pleaded by plaintiff in her reply, has no application to the factual situation disclosed by the evidence. The evidence is insufficient to support a jury finding that Smith, after he saw or by the exercise of due care should have seen that plaintiff was not going) to stop and yield the right of way, then had sufficient time to enable him by the exercise of due care to have stopped the tractor-trailer or otherwise to have acted so as to avoid the collision.

We have reached these conclusions after consideration of the evidence in the light most favorable to plaintiff. Hence, assignments of error directed to the admission over plaintiff’s objection of certain evidence offered by defendants have no bearing on the question of nonsuit.

The applicable principles of law are well established and have been frequently stated. There is no need for reiteration. Nor do we deem it appropriate to analyze the evidence in greater detail.

The judgment of involuntary nonsuit is

Affirmed.