Bell ex rel. Bell v. Wallace

PARKER, Judge. Appellants’ three assignments of error all relate to the court’s charge to the jury. First, plaintiffs contend the court erred in refusing their request to submit an issue of last clear chance to the jury. We find no error. The issue of last clear chance did not arise on the evidence in this case. “[T]o bring into play the doctrine of the last clear chance, there must be proof that after the plaintiff had, by his own negligence, gotten into a position of helpless peril (or into a position of peril to which he was inadvertent), the defendant discovered the plaintiff’s helpless peril (or inadvertence), or, being under a duty to do so, should have, and, thereafter, the defendant, having the means and the time to avoid the injury, negligently failed to do so.” Exum v. Boyles, 272 N.C. 567, 576, 158 S.E. 2d 845, 853 (1968). (Emphasis [373] added.) Here, there was ample evidence from which the jury could find that defendant was negligent in pulling out to pass the pickup truck without first seeing that the passing lane was clear so that she could move into it with safety. There was also evidence to support a jury finding that the minor plaintiff was contributorily negligent in undertaking to pass the plaintiff without first giving timely warning of her intention so to do by blowing her horn. The jury was also justified in finding that these two acts of negligence, which all of the evidence showed occurred substantially simultaneously, combined to cause plaintiffs’ injuries. Indeed, but for the combined negligence of the defendant and the negligence of the minor plaintiff working concurrently, the minor plaintiff would never have been in any position of peril. In this case, however, there was no evidence from which the jury could find that after the minor plaintiff came into a position of peril as result of the concurrent negligence of both parties, there then remained time sufficient or means by which the defendant could have avoided the accident. Once the negligence of the parties combined to place the minor plaintiff in danger, such opportunity to avoid the accident as may have existed was equally available to the minor plaintiff as it was to the defendant. The trial judge committed no error in refusing to submit an issue of last clear chance to the jury. Plaintiffs’ second assignment of error is directed to the following portion of the trial judge’s charge: “Now, with respect to the duty to control her vehicle, I instruct you that the driver of an automobile who wishes to pass another ahead of him must keep his automobile under control so as to avoid a collision if the driver ahead of him apparently does not hear his signal or is not aware of his intention to pass. Now, furthermore, Miss Bell would have some — you would consider whether she had a duty with respect to sounding her horn. I instruct you that the law in the State of North Carolina with respect to sounding a horn when passing another vehicle is as follows: ‘A driver or a motorist does not have an absolute duty to sound a horn when overtaking and passing another vehicle, that is, an absolute duty to sound his horn in all cases. On the other hand, in a type of situation where a reasonably prudent person would sound his horn under those circum [374] stances, then the motorist does have the duty to sound his horn in that type of situation.’ ” Plaintiffs assert that the court’s charge places on the driver of an overtaking vehicle the positive responsibility to sound his horn contrary to the present language in G.S. 20-149 (b). In that connection, plaintiffs point out that the General Assembly amended G.S. 20-149 (b) by Ch. 1330, Sec. 15, 1973 Session Laws so as to eliminate the previously existing responsibility. However, the statutory duty prescribed in G.S. 20-149 (b) is not here at issue. What is involved here is the duty imposed upon a passing motorist by the common law to use reasonable care. “The common law imposes upon him the duty to use reasonable care to avoid injury to other persons upon the highway and, for that purpose, to blow his horn if, under like circumstances and conditions, a reasonably prudent driver would have done so. . . . In the absence of a statutory requirement, ‘a motorist is required, when reasonably necessary, to blow his horn to give warning to travelers ahead.’ ” Lowe v. Futrell, 271 N.C. 550, 553, 157 S.E. 2d 92, 95 (1967). This common law duty to operate an automobile with the care a person of ordinary prudence would exercise under similar conditions to prevent injury to other persons on the highway exists regardless of statutes regulating the operation of automobiles. Boykin v. Bissette, 260 N.C. 295, 132 S.E. 2d 616 (1963). The trial judge correctly embodied the common law duty in his charge. Plaintiffs’ second assignment of error is overruled. Plaintiffs finally assign as error the failure of the trial court to instruct the jury on the doctrine of sudden emergency. However, when one’s own negligence brings about a sudden emergency or contributes to it in whole or in part, one cannot invoke the doctrine in exculpation of one’s negligence. Boykin v. Bissette, supra. “A party is not entitled.to the benefit of the doctrine of sudden emergency, if he himself contributes to its creation in whole or in part.” Rodgers v. Thompson, 256 N.C. 265, 276, 123 S.E. 2d 785, 792 (1962). The doctrine of sudden emergency was not applicable in the present case. In the trial appealed from, we find No error. Chief Judge Brock and Judge Hedrick concur.