Miller v. . Motor Freight Corp.

*465 ScheNCK, J. This is an action to recover damages for the wrongful death of plaintiff's intestate alleged to have been caused by the negligence of the defendant, wherein the pleas of contributory negligence and of the last clear chance were interposed. The evidence when viewed most favorably to the plaintiff tends to show that the plaintiff’s intestate was operating his automobile northward between Salisbury and Lexington on U. S. Highway No. 70 — toward Lexington, that the automobile either became disabled or ran out of gas,, and the intestate got out of it and was proceeding on foot on his right-hand side of the highway toward Lexington to get assistance; that the defendant’s truck, with trailer attached, operated by its servant and agent within the scope of his authority, was on the same highway and! was going in the same direction as was the intestate; that as the truck approached in 40 or 50 feet of the intestate the horn was sounded and' the intestate took one step closer to his right edge of the pavement, within 18 inches of said edge, and then suddenly turned to his left to cross said' highway, and the truck was turned to its left to avoid hitting the intestate; that the front of the truck passed the intestate on his left side, and intestate ran into the right side of the trailer and was knocked down: and killed; that at the time of the sounding of the horn the truck was going 60 miles per hour and at the time the truck struck the intestate it was going 40 miles per hour, and after striking the intestate the truck ran on 60 feet and stopped in the ditch on its left side of the highway. When the plaintiff had introduced her evidence and rested her case the court sustained the defendant’s demurrer to the evidence and entered a judgment as in case of nonsuit, to which the plaintiff preserved exception and appealed. While there was ample evidence to be submitted to the jury upon the issue of defendant’s actionable negligence, we are of the opinion, and so hold, that the plaintiff’s own evidence established the contributory negligence of her intestate, in that it disclosed that said intestate was walking-on the traveled portion of the highway otherwise than on his extreme-left-hand side thereof, as required by statute, Public Laws 1937, ch. 407r sec. 135 (d) (sec. 2621 [320], N. C. Code of 1939, Michie), and suddenly attempted to cross to his left-hand side thereof in front of the oncoming truck, of the approach of which he had knowledge, when he had a perfectly safe position on his right-h'and side of the highway. The plaintiff, however, argues that in the event the court should be of the opinion that the plaintiff’s evidence establishes as a matter of law the contributory negligence of her intestate, that the case should have been submitted to the jury upon an issue of last clear chance. This, argument is untenable for the reason that there is no evidence in the record tending to show that the driver of defendant’s truck saw, or in *466 the exercise of due diligence could have seen, the dangerous position in which the intestate by his own negligence had placed himself in time to have avoided the fatal collision. There is no evidence as to distance in which the truck could have been stopped, no evidence that the truck had defective brakes or was otherwise mechanically defective, no evidence to the effect that had the truck proceeded straight ahead, or had turned to the right instead of to the left, the collision could have been avoided. “The burden of the issue of last clear chance is upon the plaintiff, and such issue is not applicable unless there is evidence to support it.” Miller v. R. R., 205 N. C., 17. “No issue with respect thereto (last clear chance) must be submitted to a jury unless there is evidence to support it.” Redmon v. R. R., 195 N. C., 764. “After the evidence was concluded, the court, being of the opinion that the issue (as to last clear chance) was not warranted, refused to submit it, and the plaintiff excepted. There was no error in this ruling of his Honor, for, as he said, there was no evidence tending to prove that the defendant could have averted the plaintiff’s injury.” Ellerbe v. R. R., 118 N. C., 1024. The judgment of the Superior Court is Affirmed.