Wade Ex Rel. Wade v. Jones Sausage Co. , 239 N.C. 524 ( 1954 )

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80 S.E.2d 150 (1954) 239 N.C. 524
WADE
v.
JONES SAUSAGE CO. et al.
No. 96.
Supreme Court of North Carolina.
February 24, 1954.
Fountain, Fountain & Bridgers, Tarboro, for plaintiff, appellee.

Spruill & Spruill, Rocky Mount, for defendant, appellants.

*151 ERVIN, Justice.

The defendants assert that the evidence does not bring the plaintiff's claim within the purview of the last clear chance or discovered peril doctrine, and that their assignments of error ought to be sustained on that ground.

Where an injured pedestrian who has been guilty of contributory negligence invokes the last clear chance or discovered peril doctrine against the driver of a motor vehicle which struck and injured him, he must establish these 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. Dowdy v. Southern R. R. Co., 237 N.C. 519, 75 S.E.2d 639; Lee v. Atlantic Coast Line R. R. Co., 237 N.C. 357, 75 S.E.2d 143; Matheny v. Central Motor Lines, 233 N.C. 673, 65 S.E.2d 361; Mount Olive Manufacturing Co. v. Atlantic Coast Line R. R. Co., 233 N.C. 661, 65 S.E.2d 379; Osborne v. Norfolk & W. R. R. Co., 233 N.C. 215, 63 S.E.2d 147; Aydlett v. Keim, 232 N.C. 367, 61 S.E.2d 109; Ingram v. Smoky Mountain Stages, Inc., 225 N.C. 444, 35 S.E.2d 337; Mercer v. Powell, 218 N.C. 642, 12 S.E.2d 227; Van Dyke v. Atlantic Greyhound Corp., 218 N.C. 283, 10 S.E.2d 727; Cummings v. Atlantic Coast Line R. R. Co., 217 N.C. 127, 6 S.E.2d 837; Hunter v. Bruton, 216 N.C. 540, 5 S.E.2d 719; Newbern v. Leary, 215 N.C. 134, 1 S.E.2d 384; Taylor v. Rierson, 210 N.C. 185, 185 S.E. 627; Morris v. Seashore Transportation Co., 208 N.C. 807, 182 S.E. 487; Miller v. Southern R. R. Co., 205 N.C. 17, 169 S.E. 811; Caudle v. Seaboard Air Line R. R. Co., 202 N.C. 404, 163 S.E. 122; Jenkins v. Southern R. R. Co., 197 N.C. 786, 148 S.E. 926, Id., 196 N.C. 466, 146 S.E. 83; Redmond v. Norfolk Southern R. R. Co., 196 N.C. 768, 147 S.E. 287; Redmon v. Southern R. R. Co., 195 N.C. 764, 143 S.E. 829; West Construction Co. v. Atlantic Coast Line R. R. Co., 185 N.C. 43, 116 S.E. 3; Fry v. Utilities Co., 183 N.C. 281, 111 S.E. 354; McManus v. Seaboard Air Line R. R. Co., 174 N.C. 735, 94 S.E. 455; Cullifer v. Atlantic Coast Line R. R. Co., 168 N.C. 309, 84 S.E. 400; Edge v. Atlantic Coast Line Railway Company, 153 N.C. 212, 69 S.E. 74; Styles v. Receivers of Richmond & D. Railroad, 118 N.C. 1084, 24 S.E. 740; Gunter v. Wicker, 85 N.C. 310.

When the evidence is interpreted in the light most favorable to the plaintiff, it reveals this factual situation:

United States Highway No. 64, which runs east and west through Edgecombe County is paved to a width of 20 feet. It has a dirt shoulder 10 feet wide on each side. The plaintiff is subject to dizzy spells of a disabling character. Despite this infirmity, he undertook to walk eastward upon the main-traveled portion of the highway sometime before four o'clock on the morning of July 24, 1952. While so doing, he became dizzy, lost consciousness, fell, and came to rest athwart the center of the pavement with his feet and legs projecting into the southern traffic lane. Shortly thereafter the defendant Hicks came upon the scene from the west, driving his employer's eastbound motor truck along the southern traffic lane at a speed of about 45 miles an hour. The truck was equipped with burning headlights which fell upon the plaintiff's helpless and prostrate body and rendered it plainly visible to Hicks when the vehicle in his charge was 225 feet away. Although he could have seen the plaintiff throughout the intervening 225 feet and could have avoided striking him *152 by stopping the truck or by driving it onto the southern shoulder of the highway, Hicks drove the vehicle straight ahead at unabated speed along, the southern traffic lane and ran over the plaintiff's ankles and feet, inflicting painful and permanent injuries upon him.

These facts bring the plaintiff's claim within the protection of the last clear chance or discovered peril doctrine. As a consequence, the judgment of the superior court will be sustained.

No error.