Pippins v. Garner

Court of Appeals of North Carolina

Pippins v. Garner

313 S.E.2d 245, 67 N.C. App. 484, 1984 N.C. App. LEXIS 3106

CourtCourt of Appeals of North Carolina

DecidedApril 3, 1984

Docket833SC421

StatusPublished

Cited by3 cases

This text of 313 S.E.2d 245 (Pippins v. Garner) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Pippins v. Garner, 313 S.E.2d 245, 67 N.C. App. 484, 1984 N.C. App. LEXIS 3106 (N.C. Ct. App. 1984).

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Opinions

HILL, Judge.

The sole issue is whether the trial court erred in refusing to submit the issue of last clear chance to the jury. We find that the court properly declined to submit the issue of last clear chance.

In order to submit the issue of last clear chance to the jury, the evidence must tend to establish the following:

(1) that plaintiff, by his own negligence, placed himself in a position of peril (or a position of peril to which he was inadvertent); (2) that defendant saw, or by the exercise of reasonable care should have seen, and understood the perilous position of plaintiff; (3) that he should have so seen or discovered plaintiffs perilous condition in time to have avoided injuring him; (4) that notwithstanding such notice defendant failed or refused to use every reasonable means at his command to avoid the impending injury; and (5) that as a result of such failure or refusal plaintiff was in fact injured.

Wray v. Hughes, 44 N.C. App. 678, 681-82, 262 S.E. 2d 307, 309-10, disc. rev. denied, 300 N.C. 203, 269 S.E. 2d 628 (1980). Last clear chance “contemplates that if liability is to be imposed the defendant must have a last ‘clear’ chance, not a last ‘possible’ chance to avoid injury.” Grant v. Greene, 11 N.C. App. 537, 541, 181 S.E. 2d 770, 772 (1971). Accord Battle v. Chavis, 266 N.C. 778, 781, 147 S.E. 2d 387, 390 (1966). The burden is on the plaintiff to establish that the doctrine applies. Vernon v. Crist, 291 N.C. 646, 654, 231 S.E. 2d 591, 596 (1977).

In the case under review plaintiffs have failed to carry their burden of establishing the doctrine’s applicability. The evidence [486]*486shows that the collision occurred within the intersection of a three lane road. Some question exists as to the right of way at the time of the collision, each party contending the traffic light gave such right to her or him. Carolyn Denise Pippins testified she first saw the defendant’s car stopped across Dickinson Street a little way behind the pedestrian walkway. She noticed his left turn signal was activated. She was turning her vehicle toward the lane nearest the curb and did not know of defendant’s attempt to turn left until defendant’s car struck the car she was driving. The evidence further shows that plaintiffs car was moving 30 to 35 miles per hour or 44 to 51.33 feet per second. There is evidence that defendant’s car was moving at a speed of 20 miles per hour or 27.33 feet per second. Such evidence indicates that the matter occurred within a very few seconds and is a case of negligence and contributory negligence rather than last clear chance. While the defendant may have had the last possible chance to avoid the injury, defendant had not the time nor the means to have the last clear chance to entitle the submission of the question to the jury.

Affirmed.

Chief Judge VAUGHN concurs. Judge Phillips dissents.

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HILL, Judge.

The sole issue is whether the trial court erred in refusing to submit the issue of last clear chance to the jury. We find that the court properly declined to submit the issue of last clear chance.

In order to submit the issue of last clear chance to the jury, the evidence must tend to establish the following:

(1) that plaintiff, by his own negligence, placed himself in a position of peril (or a position of peril to which he was inadvertent); (2) that defendant saw, or by the exercise of reasonable care should have seen, and understood the perilous position of plaintiff; (3) that he should have so seen or discovered plaintiffs perilous condition in time to have avoided injuring him; (4) that notwithstanding such notice defendant failed or refused to use every reasonable means at his command to avoid the impending injury; and (5) that as a result of such failure or refusal plaintiff was in fact injured.

Wray v. Hughes, 44 N.C. App. 678, 681-82, 262 S.E. 2d 307, 309-10, disc. rev. denied, 300 N.C. 203, 269 S.E. 2d 628 (1980). Last clear chance “contemplates that if liability is to be imposed the defendant must have a last ‘clear’ chance, not a last ‘possible’ chance to avoid injury.” Grant v. Greene, 11 N.C. App. 537, 541, 181 S.E. 2d 770, 772 (1971). Accord Battle v. Chavis, 266 N.C. 778, 781, 147 S.E. 2d 387, 390 (1966). The burden is on the plaintiff to establish that the doctrine applies. Vernon v. Crist, 291 N.C. 646, 654, 231 S.E. 2d 591, 596 (1977).

In the case under review plaintiffs have failed to carry their burden of establishing the doctrine’s applicability. The evidence [486]*486shows that the collision occurred within the intersection of a three lane road. Some question exists as to the right of way at the time of the collision, each party contending the traffic light gave such right to her or him. Carolyn Denise Pippins testified she first saw the defendant’s car stopped across Dickinson Street a little way behind the pedestrian walkway. She noticed his left turn signal was activated. She was turning her vehicle toward the lane nearest the curb and did not know of defendant’s attempt to turn left until defendant’s car struck the car she was driving. The evidence further shows that plaintiffs car was moving 30 to 35 miles per hour or 44 to 51.33 feet per second. There is evidence that defendant’s car was moving at a speed of 20 miles per hour or 27.33 feet per second. Such evidence indicates that the matter occurred within a very few seconds and is a case of negligence and contributory negligence rather than last clear chance. While the defendant may have had the last possible chance to avoid the injury, defendant had not the time nor the means to have the last clear chance to entitle the submission of the question to the jury.

Affirmed.

Chief Judge VAUGHN concurs. Judge Phillips dissents.

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Bluebook (online)

313 S.E.2d 245, 67 N.C. App. 484, 1984 N.C. App. LEXIS 3106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pippins-v-garner-ncctapp-1984.

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