Glosson Motor Lines, Inc. v. Southern Railway Co.

Mallaed, C.J. Defendant objected to the submission of the third issue relating to last clear chance. The doctrine of last clear chance is applicable when both the plaintiff and the defendant have been negligent and the defendant has time to avoid the injury after the combined [406] negligence of both has resulted in the hazard being created. In the case of Ingram v. Smoky Mountain Stages, Inc., 225 N.C. 444, 35 S.E. 2d 337 (1945) it is said: “The doctrine of last clear chance, otherwise known as the doctrine of discovered peril, is accepted law in this State. It is this: The contributory negligence of the plaintiff does not preclude a recovery where it is made to appear that the defendant, by exercising reasonable care and prudence, might have avoided the injurious consequences to the plaintiff, notwithstanding plaintiff’s negligence; that is, that by the exercise of reasonable care defendant might have discovered the perilous position of the party injured or killed and have avoided the injury, but failed to do so. * * * To sustain the plea it must be made to appear that (1) plaintiff by his own negligence placed himself in a dangerous situation; (2) the defendant saw, or by the exercise of reasonable care should have discovered, the perilous position of plaintiff, (3) in time to avoid injuring him; and (4) notwithstanding such notice of imminent peril negligently failed or refused to use every reasonable means at his command to avoid the impending injury, (5) as a result of which plaintiff was in fact injured.” In the case of Irby v. R. R., 246 N.C. 384, 98 S.E. 2d 349 (1957), the Supreme Court said: “The discovery of the danger, or duty to discover it, as basis for a charge of negligence on the part of defendant after the peril arose, involves something more than a mere discovery of, or duty to discover, the presence of the injured person, it includes a duty, in the exercise of ordinary care under the circumstances, to appreciate the danger in time to take the steps necessary to avert the accident.” Applying the above principles of law to the evidence in this case, we are of the opinion and so hold that the court did not commit error in submitting the issue of last clear chance. There was evidence of negligence on the part of the defendant, and contributory negligence on the part of the plaintiff. There was also evidence that the defendant’s engineer could have but failed to slow down or stop the train after he saw or should have seen that the plaintiff’s truck was in a position from which it could not in the exercise of reasonable care be moved or extricated because of the Ford in front-of...it. stopped, at the stop sign at the entrance-to Main Street. [407] The evidence in this case most favorable to plaintiff tended to show that if the truck driver had had just a few more seconds after the driver in front of him moved that he could have moved his vehicle off the tracks. The evidence most favorable to plaintiff tended to show that the brakes on the train were not applied and the train did not slow down until after the collision. The jury could have found from the evidence, as it did, that there was an appreciable time between the negligence of the plaintiff’s driver in pulling plaintiff’s truck onto the railroad track behind traffic facing the stop sign and the time it was struck, during which the defendant’s engineer in the exercise of ordinary care, could or should have seen it, discovered its peril, acted with due care by slowing down or stopping and thus avoided the effect of plaintiff’s negligence. There is no evidence that plaintiff was in a position to move the truck out of the way of the train after his negligent act of pulling up behind the Ford and stopping. We think that whether the engineer, in the exercise of due care, saw or should have seen the Ford stopped by the traffic on Main Street, and the truck stopped immediately behind the Ford in time to appreciate the danger the truck was in and to take the necessary steps to slow down or stop the train and thus had the last clear chance to avoid the collision was a proper question for the jury. Defendant contends that the trial court committed error in charging the jury on the doctrine of last clear chance and on the first issue involving the negligence of the defendant. These contentions are without merit. We think the charge, when read as a whole, is basically correct and free from prejudicial error. No error. Beitt and Paekee, JJ., concur.