Cockrell v. Cromartie Transport Co. , 32 N.C. App. 172 ( 1977 )

HEDRICK, Judge.

Plaintiff has brought forward and argued only two assignments of error. The first relates to the court’s refusal to allow one of plaintiff’s witnesses to give his opinion as to the speed of defendant’s truck immediately before the collision. With respect to this assignment of error, plaintiff in his brief states the following:

“The Plaintiff is painfully aware of the fact that the record does not contain the witness’ opinion, had he been allowed to give it. Therefore, the failure to admit the opinion cannot be considered prejudicial to the Plaintiff.”

By his other assignment of error plaintiff contends the court erred in failing to submit to the jury the issue of last clear chance. The doctrine of last clear chance does not apply unless both parties are found to be negligent. Therefore the jury’s verdict finding Cavanaugh not to be negligent renders moot the question of whether the court erred in not submitting to the jury the issue of last clear chance.

No error.

Judges Parker and Clark concur.