Hatcher v. Gwaltney

128 S.E.2d 862, 258 N.C. 527, 1963 N.C. LEXIS 432

• Court: Supreme Court of North Carolina
• Decided: January 11, 1963
• Status: Published

Opinion

Per Curiam.

A careful examination of the exceptions and assignments of error does not reveal any prejudicial error in the trial below that would justify a new trial. Moreover, the plaintiff in his brief cites no authority in support of any argument on any assignment of error except as to the refusal of the court below to submit the issue of last clear chance.

In our opinion, the evidence adduced in the trial below did not warrant submission of the issue on the question of last clear chance.

The last clear chance doctrine contemplates “a last ‘clear’ chance, not a last ‘possible’ chance, to avoid the accident; it must have been such a chance as would have enabled a reasonably prudent man in like position to have acted effectively. * * * The application of the last clear chance doctrine is invoked only where there was a sufficient interval of time between the plaintiff’s negligence and his injury during which the defendant, by the exercise of reasonable care could or should have discovered the perilous position of the plaintiff in time to avoid injuring him.

“The original or primary negligence of a defendant, which would warrant answering the first issue in the affirmative, cannot be relied upon by the plaintiff to recover under the last clear chance doctrine. A recovery on the original negligence is barred in such cases by the plaintiff’s contributory negligence. The plaintiff’s right to recover, notwithstanding his own negligence, must arise out of a factual situation which gave the defendant an opportunity, through the exercise of reasonable care, to have avoided the injury to him, but failed to do so.” Aydlett v. Keim, 232 N.C. 367, 61 S.E. 2d 109; Ingram v. Smoky Mountain Stages, Inc., 225 N.C. 444, 35 S.E. 2d 337; 38 Am. Jur., Negligence, sec. 218, page 903, et seq.

In the trial below, we find

No error.