dissenting.
Because the evidence, when viewed in the light most favorable to plaintiff, supports a reasonable inference of each essential element of the doctrine of last clear chance, I respectfully dissent.
Last clear chance is one of our most agonizingly complex legal doctrines. In Exum v. Boyles, 272 N.C. 567, 158 S.E.2d 845 (1968), our Supreme Court addressed the nature of this doctrine as follows:
In Gunter v. Wicker, 85 N.C. 310, which appears to have been the first case applying the last clear chance doctrine in North Carolina, Smith, C. J., observed that “there is great difficulty in extracting from the numerous adjudications of the courts any clear and distinct principle or formula determining when the cooperating agency of the plaintiff so directly contributes to the result as to deprive him of remedy against the other party to whose negligence the injury is attributable.” The passage of time has not removed this difficulty. In Prosser, Law of Torts, 3d Ed., § 65, it is said of the doctrine of the last clear chance:
“No very satisfactory reason for the rule ever has been suggested. * * * The application of the doctrine has been attended *549with much confusion. * * * It is quite literally true that there are as many variant forms and applications of this doctrine as there are jurisdictions which apply it. * * * In such a general area of confusion and disagreement, only very general statements can be offered, and reference must of necessity be made to the law of each particular state.”
Id. at 574, 158 S.E.2d at 851.
“Much of the apparent confusion in the decisions applying this doctrine stems from the failure to observe that the respective cases involve different factual situations and, therefore, call into play different rules comprising parts of the doctrine.” Id. at 575, 158 S.E.2d at 852. The complexity of the doctrine’s application is certainly evident in the present case.
There are four elements which must be satisfied before a pedestrian struck and injured by an automobile can appropriately invoke the doctrine of last clear chance against the driver. The first element goes to the actions of the pedestrian, while the next three go to the actions of the motorist:
(1) The pedestrian’s contributory negligence placed him in a position of helpless or inadvertent peril, or subjected him to a risk of harm, from which, immediately preceding the accident, he was unable to escape or avoid by the exercise of reasonable care;
(2) The motorist discovered, or by the exercise of reasonable care could have discovered, the pedestrian’s position and his incapacity to escape from it before the endangered pedestrian suffered injury at his hands;
(3) The motorist had the time and means to avoid injury to the endangered plaintiff by the exercise of reasonable care after he discovered, or should have discovered, the pedestrian’s position; and
(4) The motorist negligently failed to use the available time and means to avoid injury to the endangered pedestrian.
See Exum, 272 N.C. at 574-75, 158 S.E.2d at 852-53 (citing with approval Restatement of the Law, Torts, Negligence, § 479); Trantham v. Estate of Sorrells, 121 N.C. App. 611, 613-14, 468 S.E.2d 401, 402-03 (1996) (citing with approval Restatement (Second) of Torts § 479 (1965)); see also Nealy v. Green, 139 N.C. App. 500, *550504-05, 534 S.E.2d 240, 243 (2000). The thrust of the last clear chance doctrine “is that a negligent plaintiff who is unable to avoid the harm placing her in helpless peril immediately before the accident which results in her injury may recover against a defendant who has the means and ability to avoid the accident but fails to do so.” Trantham, 121 N.C. App. at 614, 468 S.E.2d at 403 (emphasis in original). Last clear chance is applicable if, at the time of the accident, the plaintiff “is incapable of averting harm by the exercise of reasonable care,” even though this inability “is because of some antecedent lack of preparation, since he is required to exercise with reasonable attention, care, and competence only such ability as he then possesses.” Id. (quoting Restatement (Second) Torts § 479, comment to Clause (a)).
The majority concludes plaintiff failed to establish the first element of last clear chance because the evidence “fails to support a reasonable inference that plaintiff, by the exercise of reasonable care, could not escape the position of peril in which he negligently placed himself.” I disagree and conclude plaintiff was in helpless peril from which he could not escape by the exercise of reasonable care immediately prior to being struck by defendant’s vehicle.
Viewed in the light most favorable to plaintiff, the evidence shows he walked onto the road in an attempt to protect hunting dogs. He first observed defendant’s vehicle traveling toward him when it was approximately 1000 feet away. At that time, he had a reasonable expectation defendant would see him and the dogs in the road, slow down, and prepare to stop. A motorist using a highway, such as defendant, owes a duty to all other persons using the highway, including plaintiff in the present case, to keep a reasonable and proper lookout in the direction of travel and see what ought to be seen. Hairston v. Alexander Tank & Equipment Co., 310 N.C. 227, 239, 311 S.E.2d 559, 568 (1984). It was reasonable for plaintiff to expect defendant to recognize and fulfill this duty.
Additionally, unlike in Clodfelter v. Carroll, 261 N.C. 630, 135 S.E.2d 636 (1964), and Culler v. Hamlett, 148 N.C. App. 372, 559 S.E.2d 192 (2002), the visual conditions here were more than adequate — it was daytime; there was no fog; the road was straight; and there was nothing to obstruct defendant’s view. Plaintiff, accordingly, did not act unreasonably, as a matter of law, by staying in the road and waving his hands and hat in an attempt to attract defendant’s attention, even when defendant’s vehicle was 500 to 600 feet *551away. Plaintiff still had a reasonable expectation that defendant, in maintaining a proper lookout, would see him, slow down and prepare to stop.
Plaintiff became contributorily negligent by waiting too long to abandon his efforts to stop defendant’s vehicle. However, at that point, defendant’s vehicle was 100 to 150 feet away and plaintiff was standing near the center line of the road. With defendant fast approaching, plaintiff attempted to extricate himself from danger by stepping out of defendant’s path. He was much closer to the other lane of travel than the shoulder of the road. Thus, he acted reasonably in clearing defendant’s path by stepping into the opposite lane of travel. Defendant, however, had continued to fail to maintain a proper lookout and, according to his testimony and the majority opinion, did not notice plaintiff in the road until “it was too late to stop to avoid hitting him.” When defendant finally noticed plaintiff, he swerved into the opposite lane of travel and struck him. By staying in his own clear lane of travel, defendant could have avoided the accident. This evidence is sufficient to support a reasonable inference plaintiff was in helpless peril from which he could not extricate himself immediately preceding the accident. Thus, the first element of last clear chance is met.
Defendant fails to dispute the existence of the second and fourth elements of last clear chance. Therefore, we assume the evidence supports those two elements. Hales v. Thompson, 111 N.C. App. 350, 356, 432 S.E.2d 388, 392 (1993).
Defendant does, however, contest the third element of last clear chance. He contends the evidence is not supportive of a reasonable inference that he had the time and means to avoid the accident by the exercise of reasonable care after he discovered, or should have discovered, plaintiff’s helpless peril. I disagree.
Viewed in the light most favorable to plaintiff, the evidence shows defendant did not notice the vehicles parked on the side of the road until he was approximately 500 feet away. Even then, he did not see the two people standing in the road. It was only after he had gotten closer to the vehicles that he noticed Jay Womble standing on the right-hand side of the road. Womble testified that when he realized defendant was not slowing, he stepped off the road and onto the shoulder. Despite then seeing Womble and the parked vehicles, defendant did not see plaintiff until “it was too late to stop to avoid hitting him.” If defendant had maintained a proper lookout, he would *552have noticed plaintiff sooner and could have stayed in his own clear lane of travel, at whatever speed, and avoided striking plaintiff. Further, the evidence, taken in the light most favorable to plaintiff, shows defendant did not apply his brakes until after he hit plaintiff. This evidence is sufficient to support a reasonable inference that, had he exercised reasonable care, defendant had the time and means to avoid the accident. The jury had an adequate basis on which to return its verdict.
Because I find the evidence sufficient to warrant the trial court’s instruction on last clear chance, it is necessary to also address defendant’s remaining assignments of error.
Having carefully reviewed the record and briefs, I find the following assignments of error raised by defendant lacking in merit: (1) the trial court erred in denying his requested jury instruction on the doctrine of sudden emergency, See Hairston, 310 N.C. at 229, 311 S.E.2d at 568 (the sudden emergency must not have been created by the negligence of the party seeking protection of the doctrine); accord Long v. Harris, 137 N.C. App. 461, 528 S.E.2d 633 (2000); Conner v. Continental Industrial Chemicals, 123 N.C. App. 70, 472 S.E.2d 176 (1996); (2) the trial court erred in denying his motion for judgment notwithstanding the verdict or, in the alternative, for a new trial on the issue of last clear chance; (3) the trial court erred in denying plaintiff’s motion for additur, See Lazenby v. Godwin, 40 N.C. App. 487, 496, 253 S.E.2d 489, 493 (1979) (a ruling on a motion for additur is within the discretion of the trial judge); and (4) the trial court abused its discretion in granting plaintiff’s motion for attorneys’ fees, See Washington v. Horton, 132 N.C. App. 347, 513 S.E.2d 331 (1999) (setting forth six factors to be considered by trial court in determining whether to award attorneys’ fees under N.C. Gen. Stat. § 6-21.1); Thorpe v. Perry Reddick, 144 N.C. App. 567, 551 S.E.2d 852 (2001) (award of attorneys’ fees will not be overturned absent an abuse of discretion); Tew v. West, 143 N.C. App. 534, 546 S.E.2d 183 (2001).
I would remand for a new hearing on plaintiff’s motion for costs. The trial court is required to make more detailed findings of fact concerning (1) whether the costs alleged by plaintiff are allowable under Chapter 7A, Article 28 of the General Statutes or N.C. Gen. Stat. § 6-20; and (2) whether the costs are reasonable and necessary. See Lewis v. Setty, 140 N.C. App. 536, 537 S.E.2d 505 (2000); Minton v. Lowe’s Food Stores, 121 N.C. App. 675, 468 S.E.2d 513 (1996).
*553Accordingly, I respectfully dissent as to the trial court’s instruction on last clear chance. I would affirm the trial court’s judgment entered on the jury’s verdict. I also would affirm the trial court’s award of attorneys’ fees but reverse and remand for a new hearing on the issue of costs.