Shaw v. Burton

PHILLIPS, Judge. The only questions of substance presented for our determination are whether the court erred in directing verdicts against plaintiffs’ claims based upon the second accident. Other questions are posed but they either have no basis or are superfluous. Plaintiffs’ arguments that the court erred in refusing to instruct the jury [117] as to their damages in the second accident and the negligence of defendants Burton and the oil company in causing it serve no purpose; for if the verdict directed in the defendants’ favor is upheld the refusals to instruct were proper, and if it is not a new trial will be ordered. Their other argument — that they were prejudiced during the trial by the court, over plaintiffs’ “repeated objections,” permitting defendant Knight to cross-examine plaintiff with photographs that counsel refused to let plaintiffs’ counsel see — has no foundation as the record contains no objection to the cross-examination involved. As to the verdict directed in favor of defendants Burton and Rex Oil Company, plaintiffs’ evidence does establish the contributory negligence of the male plaintiff in regard to the second accident as a matter of law and the verdict directed in favor of these defendants with respect thereto was proper. All persons sui juris are required to exercise reasonable care for their own safety, Garmon v. Thomas, 241 N.C. 412, 85 S.E.2d 589 (1955), and the evidence clearly establishes that such care was not exercised by the male plaintiff in regard to the second accident. For their evidence shows without contradiction that before being hit by defendant Knight’s car the male plaintiff stood in the highway or road for two or three minutes, when not under a disability and not engaged in an emergent task of any kind, without watching out for vehicles entitled to use the way. Such indifference to one’s own safety is not reasonable care; it can only be characterized as negligence. Price v. Miller, 271 N.C. 690, 157 S.E.2d 347 (1967). But, contrary to the court’s ruling, plaintiffs’ evidence does give rise to the last clear chance doctrine and the verdict directed in favor of defendant Knight was error. In ruling that the doctrine does not apply to defendant Knight, the court in effect concluded that the only inference that can reasonably be drawn from the evidence is that in driving her car along the road under the conditions that then existed defendant Knight in the exercise of reasonable care could not or should not have discovered that the two vehicles and the three men were in the roadway in time to avoid striking them. We view the evidence differently. When viewed in its most favorable light for the plaintiffs the evidence indicates, in gist, that defendant Knight was nearly a half mile away traveling on a straight, level highway at a speed of only 35-40 miles per hour in clear weather, on a dark night, when the accident scene consisting of two lighted vehicles and three men astride her line of [118] travel came into her view, and that facing her as she drove along were lights that ran along the side of a 45-foot tanker and the taillights and red reflectors of an automobile, and that she saw neither the men nor vehicles and made no attempt to stop the car until it was virtually upon them. This evidence does not necessarily lead to the conclusion that defendant could not have discovered the perilous situation in time to avoid the collision. It can reasonably be inferred from it, we think, that had defendant maintained a proper lookout as she drove along she could have discovered the peril in ample time to stop her car before colliding with either the men or the vehicles. In Exum v. Boyles, 272 N.C. 567, 158 S.E.2d 845 (1968), under circumstances that were somewhat similar, but less favorable to the injured person than are those in this case, the last clear chance doctrine was applied. In Exum: The motorist at 55 m.p.h. was traveling 15 or 20 miles an hour faster than defendant Knight, and thus required a longer distance in which to stop than she did; the motorist’s maximum visibility was 200 yards, only a fraction of defendant Knight’s half mile; the person injured was barely on the edge of the pavement and his car was a foot or so off the pavement, whereas in this case two lighted vehicles and three men were in the middle of defendant’s lane of travel. As indicated in Exum it is not essential to the application of the doctrine that defendant Knight saw or in the exercise of reasonable care could have seen the imperilled men as she drove along; it is enough that she could see the lighted vehicles blocking the highway; for from its inception the doctrine has applied to imperilled property as well as persons, Davies v. Mann, 10 M. & W. 546, 152 Eng. Rep. 588 (1842), and the lighted vehicles in the highway were an indication to defendant not only that they would be damaged if she did not stop, but also that some dismounted passengers might be near. No error is found in the judgment dismissing all of plaintiffs’ claims against defendants Burton and Rex Oil Company. The judgment dismissing plaintiffs’ claims against defendant Knight is reversed and the matter remanded to the Superior Court for a new trial in accordance with this opinion. No error in part; reversed in part; and remanded. Judges Johnson and Parker concur.