Billings v. Billings Trucking Corp. , 44 N.C. App. 180 ( 1979 )

VAUGHN, Judge.

Plaintiff contends that the judge should have submitted an issue and instruction on the doctrine of last clear chance which “is regarded in this jurisdiction as but an application of the doctrine of proximate cause.” Exum v. Boyles, 272 N.C. 567, 578, 158 S.E. 2d 845, 854 (1968). The issue is thus whether plaintiff’s failing to heed the warning of defendant’s flagman and his driving to a position where he was hit by the rear of defendant’s truck as it entered the highway is the proximate cause of the injury or whether the backing of the truck onto the road and into defendant’s car is the proximate cause of plaintiff’s injury. For plaintiff to be entitled to the instruction, there must be evidence that plaintiff was in a position of inadvertent or helpless peril which defendant’s employees thereafter discovered or should have discovered and that the defendant’s employees had the means and the time to avoid the injury and failed to so do. Vernon v. Crist, 291 N.C. 646, 231 S.E. 2d 591 (1977). This is not such a case. All events occurred within a very few seconds. It was simply a case of negligence and contributory negligence. The defendant’s employee was negligent in backing out and plaintiff was con-tributorily negligent in not heeding a warning to stop. The employee of defendant did not have an existing ability to avoid harming plaintiff after plaintiff drove past the flagman. The negligence was not subsequent to that of plaintiff but was simultaneous in time. “Peril and the discovery of such peril in time to avoid injury constitutes the backlog of the doctrine.” Ingram v. Smoky Mountain Stages, Inc., 225 N.C. 444, 447, 35 S.E. 2d 337, 339 (1945). Plaintiff was not entitled to the instruction.

Plaintiff contends that the court erred in defining the word “negligence” as “fault.” The alleged error occurred in the following instruction:

“Now, actionable negligence consists of two elements, the first being negligence and the other, proximate cause. If I had to define the word ‘negligence’ in oie word, I would probably use the word ‘fault’ but the accepted and correct definition of the word ‘negligence’ is the omission or . failure to do that which a reasonable prudent person when guided by those considerations that ordinarily regulate the conduct of human affairs would do or doing something which a reasonable prudent person would not do under the same or similar circumstances. You will note the test is what a reasonable prudent person would or would not do under the same or similar circumstances. The test is not what the most careful or the most conscientious person would or would not do; but, again, the test is what a reasonable prudent and careful person would or would not do under the same or similar circumstances.”

It is obvious from the foregoing that the judge gave the proper definition of negligence. We do note, however, that there will probably be no circumstances under which the judge will be required to define negligence in one word, and it served no useful purpose to speculate how he might do so before the jury in the case. There is, nevertheless, no possibility that plaintiff could have been prejudiced thereby.

We have carefully considered all of the arguments advanced by plaintiff. We conclude that no prejudicial error has been shown.

No error.

Judges WEBB and MARTIN (Harry C.) concur.