dissenting.
Believing that the plaintiff, who was contributorily negligent as a matter of law, has failed to make out a case of last clear chance, I respectfully dissent.
The plaintiff and her husband were employed to deliver newspapers. In the dark, early morning hours of a winter day, 16 December 1986, plaintiff’s husband stopped his van in the right-hand lane of the highway across the street from plaintiff’s residence. His vehicle was parked on the shoulder of the road with the wheels on the white line of the roadway. At this point on the highway, there are no signal lights, or marked crossovers. Plaintiff is a sixty-two-year-old woman who, unfortunately, prior to this accident, suffered impaired vision and memory loss and, from moment to moment, forgot where she was. At trial, plaintiff’s husband described her condition as follows:
A. She had an aneurysm.
Q. Could you explain that a little bit please?
*501A. Well, it’s a supposedly congenital defect in an artery, in this case, in an artery in her brain that [in] 1970 broke, which was a stroke that she recovered from spontaneously, though it left her essentially in the condition she is now.
Q. Could you tell us what that is please?
A. Loss of vision to the right in both eyes, an area something like this that extends to the center vision. And from a visual shield chart, there’s little holes here and there in that vision which is no peripheral vision at all to the right.
Q. How else has it affected Betsy?
A. And she has the short term memory loss. She is alert enough at any one given moment. I think of it as someone looking in life with a very small flashlight of their attention which when she’s focused, she’s all right. But a moment later, she, it’s a continuity problem. Moment later focus some place else, and she forgets where she was a moment before.
Plaintiff’s condition is further reflected in her husband’s testimony describing what happened earlier in the morning, just prior to the accident:
A. We wake up about, little before six and fix breakfast, get dressed and all of that. And then about 6:30 as usual, this was a little bit later this morning, probably 6:35 maybe. And she is very methodical as she has to be to keep organized at all, and so she goes through a checklist.
Q. A checklist?
A. She’s got it on the wall, her apron and her, when she calls a mumble book which is how she keeps track of things. She has a little book just like this and she writes everything. She puts that away in her back pocket, so on and lays out her raincoat and so on. And she was still doing that when I went out and started the car ....
Plaintiff’s husband was unable to say whether his wife looked both ways before entering the highway, but he did testify that:
A. No, it would be very unusual if she just came right across. She has to pay more attention than most people just to do normal things.
*502Q. She has to pay?
A. If she had look down the road, she would have had to look so her left vision was looking down the road because she has no right vision in that direction.
Q. Could you describe her speed of walk on that particular occasion?
A. Normal I think. Little old lady walking.
Plaintiff stepped from the curb without looking in either direction, crossed one lane of traffic, and had started across the other lane of traffic when she was struck by defendant-wife, who was traveling only twenty to twenty-five miles per hour.
Assuming, as all the parties to this action have, that the negligence of both parties is well established, I believe that plaintiff has failed to prove the last two elements necessary to invoke the doctrine of last clear chance:
“(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.”
Clodfelter v. Carroll, 261 N.C. 630, 635, 135 S.E.2d 636, 639 (1964) (emphasis added) (quoting Wade v. Sausage Co., 239 N.C. 524, 525, 80 S.E.2d 150, 151 (1954)), relied upon by the majority.
The majority says that the plaintiff placed herself “in a position of helpless peril when she attempted to cross [the roadway].” I take the position that the plaintiff’s position was not perilous until she stepped into defendant-wife’s lane of travel. Even if she had seen the plaintiff earlier, defendant-wife, going twenty to twenty-five miles per hour and not knowing or having any reason to anticipate that plaintiff was impaired visually and mentally, could not foresee that plaintiff would, without stopping or looking, step from a position of safety in the left lane directly into defendant’s line of travel. Until the instant plaintiff stepped into defendant-wife’s lane of traffic, defendant-wife, going at such a slow rate *503of speed, could assume plaintiff would stop. At that point, the defendant-wife did not have even the two seconds the majority gives her to react. She reacted instantly upon seeing the plaintiff and swerved in an attempt to miss her.
The accident report, the physical evidence, and the testimony presented show that when defendant-wife first saw plaintiff in her headlights just before impact, she swerved in an attempt to avoid the plaintiff and show that, in fact, plaintiff was struck by the far right-hand fender of defendant’s vehicle. Plaintiff’s husband’s testimony confirms this:
Q. Okay. You skipped a part. She gets three quarters of the way across the road. Mrs. Burgner is coming in this direction.
A. Right, and so as she said, she hit her on the right fender; and Betsy landed about here; and Mrs. Burgner was, I suppose as she swerved, I wasn’t looking at her at that point, swerved to here; and I saw her car parked right here across the road.
Q. Regardless of how far it was from the road, there was not room for Mrs. Burgner to miss Mrs. Vancamp by coming on the side of your van. She could not have gotten between the van?
A. She would have hit her in the middle of the car and she would have properly [sic] swerve to the left because my wife was on the right fender.
The evidence of defendant-wife’s speed at twenty to twenty-five miles per hour is undisputed in the evidence. The defendant-wife’s testimony was that as soon as she saw the plaintiff in the road, she applied her brakes and turned to avoid the accident. This evidence is unrefuted by any evidence to the contrary. The trial judge, in allowing defendants’ motion for directed verdict, said: “In this case as soon as she saw the plaintiff, she did all . . . she could . . . .” Neither the majority of the panel below nor the majority of this Court has made a convincing showing that defendant-wife here had either the time or the means to avoid the injury to the plaintiff.
While I am convinced that the majority has failed to demonstrate that plaintiff satisfied the third and fourth elements of the doctrine *504of last clear chance, it may also be that the plaintiff has also failed to prove the second element:
“(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 . . . .”
Clodfelter v. Carroll, 261 N.C. at 634-35, 135 S.E.2d at 639 (quoting Wade v. Sausage Co., 239 N.C. at 525, 80 S.E.2d at 151).
If the defendant does not discover the plaintiff’s situation, but merely might do so by proper vigilance, it is obvious that neither party can be said to have a “last clear” chance. The plaintiff is still in a position to escape, and his lack of attention continues up to the point of the accident, without the interval of superior opportunity of the defendant, which has been considered so important. The plaintiff may not reasonably demand of the defendant greater care for his own protection than that which he exercises himself. Accordingly, the nearly universal rule is that there can be no recovery.
Prosser and Keeton on Torts § 66, at 467 (5th ed. 1984) (footnotes omitted).
Although there may be evidence that plaintiff was within defendant-wife’s line of sight and could have been seen for five seconds, there was no evidence that plaintiff was in a helpless, perilous position for five seconds. Plaintiff was not in a perilous position until she walked directly in front of defendant-wife’s car. At that point, there was insufficient time and distance for any driver using reasonable care to avoid the impact.
The elements necessary to invoke the doctrine of last clear chance have not been demonstrated to exist in this case. I vote to reverse the decision of the Court of Appeals and to reinstate the judgment of the trial court.
Justices MITCHELL and MARTIN join in this dissenting opinion.