Opinion
No. 833SC421
Filed 3 April 1984
Automobiles and Other Vehicles 89.2 — failure to submit doctrine of last clear chance to jury — proper The trial court properly failed to submit the doctrine of last clear chance to the jury in an action arising from an automobile accident where the collision occurred within the intersection of a three lane road, each party contended the traffic light gave the right-of-way to him or her, and the matter occurred within a very few seconds perhaps giving defendant the last possible chance to avoid the injury but not providing the means to have the last clear chance to avoid the injury.
APPEAL by plaintiffs from Tillery, Judge. Judgment entered 30 August 1982 in Superior Court of PITT County. Heard in the Court of Appeals 7 March 1984.
Jeffrey L. Miller for plaintiff appellant.
Battle, Winslow, Scott Wiley, P.A., by Marshall A. Gallop, Jr. for defendant appellee.
Judge PHILLIPS dissenting.
Plaintiffs instituted this negligence action against defendant seeking to recover damages. Shirley Pippins was the owner of a 1972 Chevrolet car. Carolyn Denise Pippins, the daughter of Shirley Pippins, was the lawful operator of the vehicle. As plaintiffs they alleged that on 3 April 1982 Carolyn Denise Pippins was traveling south on Dickinson Avenue in the City of Greenville behind a Volkswagen car; that as she proceeded through the intersection of Reade Street and Dickinson Avenue a car driven by defendant William Garner struck the left front door of the vehicle driven by plaintiff with the left front headlight of his vehicle. Plaintiffs alleged that defendant was negligent in failing to see that his movement could be made in safety before turning from a direct line of traffic, failing to keep a reasonable lookout, failing to yield the right of way, failing to keep his automobile under control so as to avoid an accident and failing to stop for a red light.
Defendant's answer denied negligence. It pled contributory negligence, alleging that plaintiff failed to keep a proper lookout, failed to keep her vehicle under proper control, failed to stop in obedience to the traffic signal, failed to yield the right of way, and failed to abide by the speed limit or a reasonable safe speed. Plaintiff replied that defendant had the last clear chance to avoid the collision.
The trial court declined to submit the issue of last clear chance. The jury returned a verdict finding defendant negligent and plaintiffs contributorily negligent. Plaintiffs appeal.
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 plaintiff's 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 shows 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 plaintiff's 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.