Pearl Thompson PRESNELL, Administratrix of the Estate of Henry Junior Presnell, Deceased,
v.
Mayberry PAYNE and Russell Dean Fowler.
No. 613.
Supreme Court of North Carolina.
November 22, 1967.*602 John Randolph Ingram, Asheboro, for plaintiff appellant.
Miller, Beck & O'Briant, Asheboro, and Steve Glass, by Adam W. Beck, for defendant appellee Payne.
Coltrane & Gavin, by T. Worth Coltrane, Jerry M. Shuping, Asheboro, for defendant appellee Fowler.
HIGGINS, Justice.
The plaintiff does not concede her intestate was contributorily negligent, as alleged in the answer, by voluntarily riding on the fender of the defendant's truck. Nevertheless, the plaintiff does stressfully contend that if it be determined by the Court as a matter of law, or by the jury as an issue of fact, that the plaintiff's intestate was contributorily negligent, nevertheless plaintiff is entitled to recover upon the ground that defendant Fowler knew of intestate's exposed position; had time and opportunity to avoid the injury, and he negligently failed to avail himself of that opportunity.
As a general rule, one who has capacity to understand and avoid a known danger and fails to take advantage of that opportunity, and injury results, he is chargeable with contributory negligence, which will bar recovery. Burgess v. Mattox, 260 N.C. 305, 132 S.E.2d 577; Huffman v. Huffman, 271 N.C. 465, 156 S.E.2d 684; Tallent v. Talbert, 249 N.C. 149, 105 S.E.2d 426. In such event, nonsuit is proper on the theory that defendant's negligence and plaintiff's contributory negligence are proximate causes of the injury. "The finding against the plaintiff on the latter issue (contributory negligence) precludes any recovery based on negligence." Boldridge v. Crowder Construction Co., 250 N.C. 199, 108 S.E.2d 215; Wilson v. Camp, 249 N.C. 754, 107 S.E.2d 743; Badders v. Lassiter, 240 N.C. 413, 82 S.E.2d 357. The negligence referred to is that which is alleged in the complaint.
However, "`* * * If the original wrong only becomes injurious in consequence of the intervention of some distinct wrongful act or omission by another, the injury shall be imputed to the last wrong as the proximate cause, and not to that which was more remote.' (Citing cases). In Baker v. Wilmington & W. R. R., 118 N.C. 1015, 24 S.E. 415, the last clear chance was referred to as `intervening negligence after the careless act of the plaintiff (contributory negligence) was complete and became a fact accomplished.' This expression doubtless means that the negligence of the party injured must have spent itself before the principle of last clear chance would apply * * * 1. The doctrine of last clear chance does not arise until it appears that the injured party has been guilty of contributory negligence. 2. No issue with respect thereto must be submitted to the jury unless there is evidence to support it. * * * 5. The doctrine (last clear chance) does not apply when the contributory negligence of the injured party bars recovery as a matter of law."
The foregoing quotations are from Redmon v. Southern R. R., 195 N.C. 764, 143 S.E. 829. It seems clear that if recovery is barred, there can be no recovery. The Court's statement in (5) follows the statement *603 in (1) that the doctrine does not arise until it appears that the injured party has been guilty of contributory negligence.
The opinion in Redmon and the cases therein cited were relied on as authority for this statement in Ingram v. Smokey Mountain Stages, Inc., 225 N.C. 444, 35 S.E.2d 337: "(1) [t]he doctrine (last clear chance) does not apply when the plaintiff is guilty of contributory negligence as a matter of law." Schenck, J., dissented. In Redman, the Court said last clear chance does not arise when the contributory negligence bars recovery. In Ingram, the Court said the doctrine does not apply when the plaintiff is guilty of contributory negligence as a matter of law.
In Dowdy v. R. R. and Burns v. R. R., 237 N.C. 519, 75 S.E.2d 639, the Court, citing Redmon, Ingram and others, repeated the holding that: "* * * (L)ast clear chance does not apply when the plaintiff is guilty of contributory negligence as a matter of law." Johnson, J. dissented.
Redmon and Ingram, and other cases, were cited by the Court in Arvin v. McClintock, 253 N.C. 679, 118 S.E.2d 129 as authority for this statement: "Moreover, having decided that plaintiff's intestate was negligent as a matter of law, the doctrine of last clear chance is not applicable." Bobbitt, J., in an opinion concurring in result but dissenting from the view that contributory negligence as a matter of law bars recovery under the last clear chance rule, assigns cogent reasons in support of the dissent. Higgins and Rodman, JJ. joined in the concurring opinion.
Our cases hold that an issue of last clear chance cannot arise until the negligence of the defendant and the contributory negligence of the plaintiff have been found. Such seems to be the general rule. At this point, however, our North Carolina cases add a twist by holding that the issue even then cannot arise if the contributory negligence of the plaintiff is determined by the Court as a matter of law, rather than by the jury as an issue of fact. Efforts to explain the difference seem to trail off in a confusion of words. The decisions making the distinction have been criticized by the North Carolina Law Review in recent articles as "confusing", "illogical", "baffling", and one article concludes "* * * the language should be promptly disavowed by the court". Vol. 33, p. 158; Vol. 40, p. 583; Vol. 42, p. 723.
The last clear chance doctrine imposes on a defendant the duty to use due care and prudence to avoid injury to a plaintiff who is in a perilous position even though negligence on the part of the defendant and contributory negligence on the part of the plaintiff have combined to place him in that position. After the peril arises, the defendant must have time and opportunity to avert it. Am.Jur., Vol. 38, Negligence, p. 904; Carlson v. Connecticut Co., 94 Conn. 131, 108 A. 531, 8 A.L.R. 569.
In this case the defendants dismiss the last clear chance issue by saying contributory negligence appears as a matter of law and the issue cannot arise. We think the better reasoned view is that an issue of last chance may arise whether contributory negligence is determined by the Court as a matter of law, or found by the jury as an issue of fact.
In this case, we hold the Court was correct in refusing to submit the issue of last clear chance, not because contributory negligence appears as a matter of law, but because evidence to support the issue is lacking. The judgment of nonsuit is
Affirmed.
BOBBITT, Justice (dissenting).
I agree fully, for reasons stated in the concurring (in result) opinion in Arvin v. McClintock, 253 N.C. 679, 118 S.E.2d 129, and in the Court's opinion in this cause, that the doctrine of last clear chance is equally available to an injured person without *604 regard to whether contributory negligence appears as a matter of law or is determined by a jury on conflicting evidence.
Ordinarily, the doctrine of last clear chance applies when, in a factual situation created by the defendant's negligence and the plaintiff's contributory negligence, the defendant, by the exercise of due care under the circumstances then existing, could have avoided injury to the plaintiff but failed to do so. Here, plaintiff asserts the alleged negligent action of defendant, after plaintiff's intestate and defendant were both fully aware of the hazardous position of plaintiff's intestate, proximately caused the injury and death of plaintiff's intestate.
It is conceded defendant was negligent in operating the truck while plaintiff's intestate was sitting on the right front fender thereof, and that riding on the truck in that position constituted (contributory) negligence on the part of plaintiff's intestate. However, both men were fully aware of the purpose of this awkward maneuver and voluntarily accepted the ordinary risks incident thereto. Plaintiff cannot complain in respect of injury to her intestate resulting naturally in the course of his travel in this precarious position, for example, by slipping or falling in the normal course of travel. In my view, defendant would be liable if he, in the light of known hazardous conditions, increased the hazards to which plaintiff's intestate was exposed by additional positive acts of negligence and thereby proximately caused the death of plaintiff's intestate.
Although a borderline case, in my opinion the evidence, when considered in the light most favorable to plaintiff, tends to show defendant, when the station wagon moved ahead under its own power, failed to exercise due care under the circumstances in that he first put on brakes abruptly, thereby causing plaintiff's intestate to fall forward from the fender of the truck, and thereafter eased or released his brakes to such extent that the truck struck plaintiff's intestate after he had fallen. For these reasons, I vote to reverse the judgment of involuntary nonsuit.
SHARP, J., joins in the dissenting opinion.