Sizemore v. Raxter

JOHNSON, Judge. The issues on this appeal concern (1) the denial of defendant’s motion for directed verdict made on the grounds that plaintiff was contributorily negligent as a matter of law; (2) the submission of the issue of last clear chance to the jury; (3) the court’s instructions on last clear chance; and (4) the admission of certain photographs into evidence. For the following reasons, we find no error and affirm the judgment of the trial court. [534] The first issue is whether the court erred in denying defendants’ motions for directed verdict. Defendants contend that the evidence showed plaintiff was contributorily negligent as a matter of law because (1) he parked the van in the roadway in violation of G.S. 20-161(a) and 20-162(b), (2) he stood in the roadway in violation of G.S. 20-174.1, and (3) he failed to keep a proper lookout for approaching vehicular traffic on South New Hope Road. Defendants, however, ignore the special rules of law concerning road workers outlined by the Supreme Court in Kellogg v. Thomas, 244 N.C. 722, 94 S.E. 2d 903 (1956). The court stated in Kellogg v. Thomas, supra that such a worker . . . cannot utterly disregard the matter of his own safety. However, he occupies a different status from an ordinary pedestrian crossing a street, and this status must be considered in determining the degree of care he must exercise for his own safety, and in determining the question of contributory negligence. Because he is not required to neglect his work to escape collision with motorists not exercising reasonable care for his safety, or not obeying statutes regulating in the interests of public safety the operation of motor vehicles, he is not obliged to keep a constant lookout for approaching vehicles, and his failure to do so, does not necessarily constitute contributory negligence as a matter of law. Whether such a worker has exercised reasonable care for his own safety in view of his work and surrounding circumstances is ordinarily for the jury under proper instructions from the court. (Citations omitted.) 244 N.C. at 729, 94 S.E. 2d at 908-909. This rule was subsequently applied to those directing traffic in Gathings v. Sehorn, 255 N.C. 503, 121 S.E. 2d 873 (1961). The evidence in the present case shows that plaintiff, who was an experienced traffic director specially trained to direct traffic by law enforcement agencies, was directing traffic on this occasion with the knowledge of law enforcement personnel. He was responsible for diverting traffic from the outside lane of South New Hope Road into the inside lane and for making sure that the runners turned north on South New Hope Road and remained on the outside curb lane of South New Hope Road. At the time the accident happened, his attention [535] was directed towards keeping the runners in the proper lane. He had parked the van in the roadway and placed pylons in the road to divert traffic into the inside lane of South New Hope Road. He had turned on a red rotating light mounted on the dashboard of the van and the van’s four-way flashers. He was standing approximately 30 to 35 feet behind the van to the east of the pylons. Under these circumstances, we cannot say plaintiff was con-tributorily negligent as a matter of law. The next issue is whether the court erred in submitting the issue of last clear chance to the jury. In order to invoke the doctrine of last clear chance, and to recover despite his contributory negligence, an injured pedestrian struck by a vehicle must establish the following four elements: (1) That the pedestrian negligently placed himself in a position of peril from which he could not escape by the exercise of reasonable care; (2) that the motorist knew, or by the exercise of reasonable care could have discovered, the pedestrian’s perilous position and his incapacity to escape from it before the endangered pedestrian suffered injury at his hands; (3) that the motorist had the time and means to avoid injury to the endangered pedestrian by the exercise of reasonable care after he discovered, or should have discovered, the pedestrian’s perilous position and his incapacity to escape from it; and (4) that the motorist negligently failed to use the available time and means to avoid injury to the endangered pedestrian, and for that reason struck and injured him. [Citing 26 cases as authority.] Clodfelter v. Carroll, 261 N.C. 630, 634-35, 135 S.E. 2d 636, 639 (1964). The “original negligence” of a defendant may be relied upon to activate the doctrine of last clear chance. Exum v. Boyles, 272 N.C. 567, 158 S.E. 2d 845 (1968). It depends upon the facts of the particular case whether an issue of last clear chance should be submitted to the jury. Id. We now apply these principles to the evidence in this case. As mentioned earlier, plaintiffs attention was on the runners at the time of the accident, with his back to the traffic on South New Hope Road. Plaintiff testified that he was not aware of defendants’ vehicle until he heard two pylons being struck. He then turned and saw defendants’ vehicle coming at him. As he [536] jumped and twisted to avoid the vehicle, he was struck by it. The evidence thus supports a finding that plaintiff negligently placed himself in a position of peril from which he could not escape by the exercise of reasonable care. The accident happened in broad daylight on a clear day. Defendant Jeffrey Raxter testified that he could see the van approximately 400 yards ahead. Plaintiff testified that the van was parked approximately 15 to 20 feet south of the intersection, with the wheels on the driver’s side off the pavement and over the curb; that the van was six feet wide; and that he was standing in the intersection three to four feet away from the east curb of South New Hope Road. Jeffrey Raxter also testified that he was traveling approximately 35 miles per hour; that he merged into the left-hand inside lane approximately 100 feet in front of the van; that plaintiff was standing approximately 30 to 35 feet behind the van; that there was nothing to prevent him from remaining in the left-hand lane; and that there was nothing to prevent him from seeing plaintiff prior to the time he first saw him. From the foregoing evidence, the jury could find that Jeffrey Raxter knew, or by the exercise of reasonable care could have discovered plaintiffs perilous position and his incapacity to escape from it before the endangered plaintiff suffered injury at his hands; that Jeffrey Raxter had the time and means to avoid injury to the plaintiff by exercise of reasonable care after he discovered, or should have discovered plaintiff’s perilous position and his incapacity to escape from it; and that Jeffrey Raxter negligently failed to use the available time and means to avoid injury to the plaintiff, as there was nothing to prevent him from remaining in the left lane of travel. Defendants’ reliance upon Watson v. White, 309 N.C. 498, 308 S.E. 2d 268 (1983), is misplaced. In that case, it was dark, and the earliest the defendant driver could have discovered the plaintiff was when, traveling 40 miles per hour exiting a curve, she was only 75 feet away from the pedestrian. The third issue is whether the court properly instructed the jury on the doctrine of last clear chance. Defendants concede that the court properly instructed on the law of last clear chance but contend that the court failed to apply the law to the evidence. After a careful review of the charge in its entirety, we hold that [537] the court did indeed adequately apply the law to the evidence, and that defendants have failed to show prejudicial error. See, Prevette v. Bullis, 12 N.C. App. 552, 183 S.E. 2d 810 (1971). The remaining issue is whether the court erred in admitting into evidence certain photographs depicting the scene of the accident which were taken more than two years after the accident. Defendants contend that an insufficient foundation was laid for the admission of the photographs and that the photographs were improperly considered as substantive evidence. They also contend that the court erred in allowing the photographer to testify as to the distances from the intersection the photographs were snapped. These contentions have no merit. Plaintiff testified that the photographs were a fair and accurate portrayal of the intersection at the time of the accident. The court received the photographs into evidence for illustrative purposes only and instructed the jury that they were to consider the photographs only for the purpose of illustrating and explaining the plaintiffs testimony. See Coach Co. v. Motor Lines, 229 N.C. 650, 50 S.E. 2d 909 (1948). Defendants also failed to object to the photographer’s testimony as to the distances from which the pictures were taken. Defendants have therefore failed to show prejudicial error. For the foregoing reasons, we hold the court properly denied defendants’ motion for a directed verdict, to set aside the verdict, for judgment notwithstanding the verdict and for a new trial. No error. Judge Phillips concurs. Judge Webb dissents.