{ "id": 8610787, "name": "VIOLA C. INGRAM and HELEN INGRAM, Administratrices of the Estate of S. O. INGRAM, v. SMOKY MOUNTAIN STAGES, INC., and H. J. SWINK", "name_abbreviation": "Ingram v. Smoky Mountain Stages, Inc.", "decision_date": "1945-10-10", "docket_number": "", "first_page": "444", "last_page": "450", "citations": [ { "type": "official", "cite": "225 N.C. 444" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "195 S. E., 779", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "213 N. C., 235", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627453 ], "opinion_index": 0, "case_paths": [ "/nc/213/0235-01" ] }, { "cite": "195 S. E., 88", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "213 N. C., 41", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626372 ], "opinion_index": 0, "case_paths": [ "/nc/213/0041-01" ] }, { "cite": "218 N. C., 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617206 ], "opinion_index": 0, "case_paths": [ "/nc/218/0283-01" ] }, { "cite": "170 S. E., 629", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "205 N. C., 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627640 ], "opinion_index": 0, "case_paths": [ "/nc/205/0205-01" ] }, { "cite": "158 S. E., 840", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "201 N. C., 51", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622186 ], "opinion_index": 0, "case_paths": [ "/nc/201/0051-01" ] }, { "cite": "198 S. E., 640", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "214 N. C., 222", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629711 ], "opinion_index": 0, "case_paths": [ "/nc/214/0222-01" ] }, { "cite": "94 S. E., 455", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "174 N. C., 735", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11255418 ], "opinion_index": 0, "case_paths": [ "/nc/174/0735-01" ] }, { "cite": "111 S. E., 354", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "183 N. C., 281", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656028 ], "opinion_index": 0, "case_paths": [ "/nc/183/0281-01" ] }, { "cite": "84 S. E., 400", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "168 N. C., 309", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659329 ], "opinion_index": 0, "case_paths": [ "/nc/168/0309-01" ] }, { "cite": "129 S. E., 146", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "190 N. C., 116", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8596244 ], "opinion_index": 0, "case_paths": [ "/nc/190/0116-01" ] }, { "cite": "223 N. C., 244", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8604752 ], "opinion_index": 0, "case_paths": [ "/nc/223/0244-01" ] }, { "cite": "218 N. C., 642", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623206 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/218/0642-01" ] }, { "cite": "217 N. C., 127", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8600358 ], "opinion_index": 0, "case_paths": [ "/nc/217/0127-01" ] }, { "cite": "216 N. C., 540", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8607951 ], "opinion_index": 0, "case_paths": [ "/nc/216/0540-01" ] }, { "cite": "169 S. E., 811", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "205 N. C., 17", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626418 ], "opinion_index": 0, "case_paths": [ "/nc/205/0017-01" ] }, { "cite": "185 S. E., 627", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "210 N. C., 185", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624789 ], "opinion_index": 0, "case_paths": [ "/nc/210/0185-01" ] }, { "cite": "146 S. E., 83", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "196 N. C., 466", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627631 ], "opinion_index": 0, "case_paths": [ "/nc/196/0466-01" ] }, { "cite": "163 S. E., 122", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "202 N. C., 404", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626753 ], "opinion_index": 0, "case_paths": [ "/nc/202/0404-01" ] }, { "cite": "143 S. E., 829", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "195 N. C., 764", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8632025 ], "opinion_index": 0, "case_paths": [ "/nc/195/0764-01" ] }, { "cite": "110 S. E., 56", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "182 N. C., 679", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657565 ], "opinion_index": 0, "case_paths": [ "/nc/182/0679-01" ] } ], "analysis": { "cardinality": 694, "char_count": 16113, "ocr_confidence": 0.494, "pagerank": { "raw": 9.269068811398173e-07, "percentile": 0.9800208429140077 }, "sha256": "aac3a0e4f9d7432482b1e49dbf479d4c8c59b1c7db5d3860b636d0c3da331eb6", "simhash": "1:d52d485e924f1a51", "word_count": 2906 }, "last_updated": "2023-07-14T21:52:44.450219+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "ScheNCk, J., dissents." ], "parties": [ "VIOLA C. INGRAM and HELEN INGRAM, Administratrices of the Estate of S. O. INGRAM, v. SMOKY MOUNTAIN STAGES, INC., and H. J. SWINK." ], "opinions": [ { "text": "Barnhill, J.\nTbe plaintiff\u2019s cause of action as alleged in tbe complaint is bottomed upon tbe allegation that tbe deceased bad crossed tbe highway, reached bis side, turned to tbe left, and was proceeding in a northwesterly direction, meeting tbe bus when tbe bus suddenly cut to tbe left across tbe center line and collided with bis car. There is no evidence in tbe record to sustain tbe allegations thus made. They are directly contradicted by tbe statement of tbe deceased himself.\nTbe cause was tried on tbe theory plaintiff bad alleged that tbe bus driver was guilty of negligence in that (1) be was traveling at an excessive rate of speed and (2) be cut bis bus to tbe left of tbe center of tbe road in violation of G. S., 20-146 and 20-148.\nTbe defendants objected and excepted to tbe submission of tbe last clear chance issue. They here stress tbe assignment of error based on this exception for that there is no evidence in tbe record to support an affirmative answer thereto. This exception must be sustained.\nTbe doctrine of last clear chance, otherwise known as tbe doctrine of discovered peril, is accepted law in this State. It is this : Tbe contributory negligence of tbe plaintiff does not preclude a recovery where it is made to appear that tbe defendant, by exercising reasonable care and prudence, might have avoided the injurious consequences to tbe plaintiff, notwithstanding plaintiff\u2019s negligence; that is, that by tbe exercise of reasonable care defendant might have discovered tbe perilous position of tbe party injured or killed and have avoided tbe injury, but failed to do so. Haynes v. R. R., 182 N. C., 679, 110 S. E., 56, and cases cited; Redmon v. R. R., 195 N. C., 764, 143 S. E., 829; Caudle v. R. R., 202 N. C., 404, 163 S. E., 122; Jenkins v. R. R., 196 N. C., 466, 146 S. E., 83; Taylor v. Rierson, 210 N. C., 185, 185 S. E., 627.\nTbe practical import of tbe doctrine is that a negligent defendant is held liable to a negligent plaintiff if tbe defendant, being aware of plaintiff\u2019s peril, or in tbe exercise of due care should have been aware of it in time to avoid injury, bad in fact a later opportunity than tbe plaintiff to avoid tbe accident. 38 Am. Jur., 901.\nPeril and tbe discovery of such peril in time to avoid injury constitutes tbe backlog of tbe doctrine. Miller v. R. R., 205 N. C., 17, 169 S. E., 811; Hunter v. Bruton, 216 N. C., 540, 5 S. E. (2d), 719. It presupposes negligence on tbe part of defendant and contributory negligence on the part of the party injured or killed which, in the absence of the doctrine, would preclude recovery in spite of defendant\u2019s negligence. Redmon v. R. R., supra,; Cummings v. R. R., 217 N. C., 127, 6 S. E. (2d), 837; Mercer v. Powell, 218 N. C., 642, 12 S. E. (2d), 227. Its application is invoked only in the event it is made to appear that there was an appreciable interval of time between plaintiff\u2019s negligence and his injury during which the defendant, by the exercise of ordinary care, could or should have avoided the effect of plaintiff\u2019s prior negligence. Bailey v. R. R., 223 N. C., 244, 25 S. E. (2d), 833; Hudson v. R. R., 190 N. C., 116, 129 S. E., 146.\nPlaintiff may not recover on the original negligence of defendant for such recovery is barred by his own negligence. The duty resting on the defendant, the breach of which imposes liability under the doctrine, arises after the plaintiff has placed himself in a perilous position and is the duty, after notice express or implied, of plaintiff\u2019s situation, to exercise reasonable care to avoid the impending injury. It is what defendant negligently did or failed to do after plaintiff put himself in peril that constitutes the breach of duty for which defendant is held liable.\nTo sustain the plea it must be made to appear that (1) plaintiff by his own negligence placed himself in a dangerous situation; (2) the defendant saw, or by the exercise of reasonable care should have discovered, the perilous position of plaintiff, (3) in time to avoid injuring him; and (4) notwithstanding such notice of imminent peril negligently failed or refused to use every reasonable means at his command to avoid the impending injury, (5) as a result of which plaintiff was in fact injured. Cullifer v. R. R., 168 N. C., 309, 84 S. E., 400; Fry v. Utilities Co., 183 N. C., 281, 111 S. E., 354; Haynes v. R. R., supra; Redmon v. R. R., supra; Miller v. R. R., supra; McManus v. R. R., 174 N. C., 735, 94 S. E., 455.\nThe doctrine does not apply when the plaintiff is guilty of contributory negligence as a matter of law. Redmon v. R. R., supra; Sherlin v. R. R., 214 N. C., 222, 198 S. E., 640, and eases cited.\nApplying these principles of law to the evidence appearing on this record we are constrained to hold that the court below, in submitting the third issue, committed error prejudicial to defendants. Mercer v. Powell, supra.\nThere is no question of right of way presented by the testimony. In fact none is alleged. The deceased, traveling on a private road used as an outlet to the public road, approached the highway. He stopped (as he stated) or hesitated as if intending to stop, or \u201cbegan to stop\u201d within a few feet of the highway (as witnesses for the defendants testified). The bus driver had the right to assume that he would obey the law and not proceed in the face of an oncoming bus. Shirley v. Ayres, 201 N. C., 51, 158 S. E., 840; Cory v. Cory, 205 N. C., 205, 170 S. E., 629; Holls v. Coach Co., ante, 323. There was nothing in the conduct of the deceased to indicate to the bus driver that he was in a position of peril or that he intended to proceed onto and across the highway until his car \u201cjumped out\u201d or \u201call at once dashed out,\u201d or \u201cshot right out\u201d in front of the bus into the zone of danger. Van Dyke v. Atlantic Greyhound Corp., 218 N. C., 283, 10 S. E. (2d), 727.\nManifestly he thus placed himself in a position of peril. How far was the bus at that time from the automobile? Was it a sufficient distance away so that by the exercise of ordinary care the bus driver could have stopped in time to avoid the collision ? Did he, after notice that deceased was attempting to cross ahead of him, fail to exercise every reasonable care to avoid the collision? Plaintiff\u2019s evidence does not speak on any of these questions. True the deceased did not see the bus before he entered the intersection, but, having entered, it was \u201cright on him\u201d and \u201che knew he was a \u2018goner.\u2019 \u201d\nOn the other hand, defendant\u2019s evidence in positive terms gives a negative answer to each question. When the deceased stopped or hesitated as if preparing to stop, the bus was only 90 feet away. When he suddenly drove his car into the intersection it was only 10 or 15 feet away. The bus driver immediately applied his brakes, cut to the left in an effort to avoid the collision and stopped almost immediately. So then there was no evidence offered by the defendant upon which plaintiff can rely in making out his case on the third issue.\nCounsel here cited and relied on the testimony of the witness Pace offered by defendants. A careful examination of that testimony discloses nothing that will avail plaintiff. It was this witness who. said the automobile approached the road and was \u201cfixing to stop\u201d when the bus was only about 90 feet away and that the automobile \u201call at once dashed out in front of the bus\u201d when the bus was \u201calmost at the entrance into the intersection.\u201d\nWe do not overlook the statement of deceased that he looked and did not see the bus, and that when he got on the highway \u201chere was this great big bus coming as hard as it could.\u201d He added, it may be noted, that it was \u201cright on him\u201d and \u201che knew he was a \u2018goner.\u2019 \u201d In this connection we need not discuss his capacity or opportunity under the circumstances to judge or estimate speed for there is a physical fact upon which all witnesses agree that \u201cspeaks louder than words.\u201d Powers v. Sternberg, 213 N. C., 41, 195 S. E., 88. The bus stopped within the intersection. It traveled just a few feet beyond and was standing over the point of collision. The suggestion that it was traveling at a high rate of speed, in the light of this admitted circumstance, is contrary to human experience. S. v. Vick, 213 N. C., 235, 195 S. E., 779.\nThat the bus driver, when he saw the automobile enter the highway just ahead of him,'cut his bus to the left and crossed the center line cannot, under the circumstances of this case, be held an act of negligence.. It is a human instinct when a collision is impending between two vehicles to turn or cut away from the other vehicle. The evidence here discloses that it was done in an effort to avoid the collision. There is no circumstance tending to show that it was other than what a man of reasonable prudence would have done.\nUpon the coming in of the verdict defendants tendered judgment setting aside the verdict on the issues of last clear chance and damages and decreeing, on the first and second issues, that plaintiff take nothing and be taxed with costs. They excepted to the refusal of the court to sign the same. This exception is duly preserved and must be sustained.\nAs we have pointed out there was no evidence offered sufficient to warrant the third or last clear chance issue. The answers to the first two issues are determinative of the controversy. The contributory negligence of deceased as found by the jury and supported by ample evidence bars recovery. No error is alleged or shown in the trial. In respect to these issues it does not appear that the submission of the third issue misled the jury or prejudiced plaintiff. Hence defendants are entitled to judgment.\nIn view of the disposition we have made of this appeal we refrain from discussing or deciding the merits of the motion to dismiss as in case of nonsuit.\nThe cause is remanded to the end that judgment dismissing the action at the cost of the plaintiff may be entered in accord with this opinion.\nError and remanded.\nScheNCk, J., dissents.", "type": "majority", "author": "Barnhill, J." } ], "attorneys": [ "Don C. Young and Chas. G. Lee, Jr., for plaintiffs, appellees.", "Smathers & Meehins for defendants, appellants." ], "corrections": "", "head_matter": "VIOLA C. INGRAM and HELEN INGRAM, Administratrices of the Estate of S. O. INGRAM, v. SMOKY MOUNTAIN STAGES, INC., and H. J. SWINK.\n(Filed 10 October, 1945.)\n1. Negligence \u00a7 10\u2014\nThe contributory negligence of the plaintiff does not preclude a recovery where it is made to appear that the defendant, by exercising reasonable care and prudence, might have avoided the injurious consequences to the plaintiff, notwithstanding plaintiff\u2019s negligence; that is, that by the exercise of reasonable care defendant might have discovered the perilous position of the party injured or killed and have avoided the injury, but failed to do so.\n2. Same\u2014\nUnder the doctrine of last clear cliance, plaintiff may not recover on the original negligence of defendant for snch recovery is barred by his own contributory negligence.\n3. Same\u2014\nThe application of the last clear chance doctrine is invoked only where there was an appreciable interval of time between plaintiff\u2019s negligence and his injury during which the defendant, by the exercise of ordinary care, could or should have avoided the effect of plaintiff\u2019s prior negligence.\n4. Same\u2014\nTo sustain the plea of last clear chance it must be made to appear that (1) plaintiff by his own negligence placed himself in a dangerous situation; (2) the defendant saw, or by the exercise of reasonable care, should have discovered, the perilous position of plaintiff, (3) in time to avoid injuring him; and (4) notwithstanding such notice of imminent peril negligently failed or refused to use every reasonable means at his command to avoid the impending injury, (5) as a result of which plaintiff was in fact injured.\n5. Same\u2014\nThe doctrine of last clear chance does not apply when the plaintiff is guilty of contributory negligence as a matter of law.\n6. Same: Trial \u00a7 38: Judgment \u00a7 171)\u2014\nWhere plaintiffs\u2019 intestate, driving an automobile on a private road used as an outlet to the public road, on approaching the highway, stopped or hesitated as if intending to stop, or began to stop within a few feet of the highway, the driver of an oncoming bus had a right to assume that deceased would obey the law and not proceed suddenly onto and across the highway, when the bus was only ten or fifteen feet from the intersection ; and there was error in submitting an issue on last clear chance.\n7. Negligence \u00a7 21: Judgment \u00a7 17b\u2014\nWhen there is no evidence to support an issue of last clear chance and the jury answers the issue on contributory negligence against plaintiff, the defendant is entitled to judgment on the verdict.\nSchenck,. J., dissents.\nAppeal by defendants from Rousseau, J., at January Term, 1945, of BUNCOMBE. Error and remanded.\nCivil action to recover damages for wrongful death. ,\nAt about 7:00 p.m. on 27 March, 1944, an automobile operated by plaintiff\u2019s intestate and a bus of the corporate defendant operated by defendant Swink collided at the intersection of the Brevard-Asheville highway and an abandoned section of road now used as a private way leading from the home of one Brooks to the public highway and known as tlie Brooks road. Tbe bus was traveling toward Asheville and the automobile approached and entered the highway to the right of the bus. The collision occurred to the left of the center of the highway \u2014 the evidence varies as to just how far to the left. The bus stopped within the intersection over the point of collision. The car proceeded across the highway, down an 8 or 10 foot embankment and stopped about 24 feet from the point of collision with its motor \u201cwide open.\u201d\nThere were skid marks 3 or 4 feet long, made by the bus, located 14 or 15 feet from the point of collision.\nPlaintiff\u2019s intestate, before his death, made a statement which was offered and admitted as a dying declaration. He said: \u201che came to the edge of the road there coming from Brooks\u2019, that he stopped and looked up and down the road, and did not see or hear a thing. That he started and got well on the road and he heard something. That he looked up the road and here was this great big bus coming as hard as it could. That he knew that the only thing in the world he could do was to get on the side of the road where he belonged, and he got just as far as he could, and the last thing he knew it was coming on him, right at him. . . . He said it was right on him coming right at him, and that he knew he was a 'goner.\u2019 . . . and he got as far on his side of the road as he could, going toward Brevard.\u201d\nThis is the only evidence in the nature of an eyewitness account offered by the plaintiff.\nWitnesses for defendants, the bus driver and passengers on the bus, said that the bus rounded the curve 300 or 400 feet from the intersection at about 30 or 35 m.p.h.; that they saw the car approach the road when the bus was about 90 feet from the intersection and the bus driver blew his horn several times, applied his brakes, and slowed to 10 or 15 m.p.h. The car \u201chesitated a moment like it was going to stop,\u201d \u201cwas fixing to stop,\u201d \u201calmost stopped,\u201d \u201cstopped,\u201d and when the bus got within 10 or 15 feet of the intersection the car \u201cshot right out in front of the bus,\u201d \u201ccame out on the road suddenly,\u201d \u201call at once dashed out in front of the bus.\u201d When the car shot out in the road the bus driver again applied his brakes and cut to the left, and the collision occurred to the left of the center of the highway. The bus did not travel over 2 or 3 feet after the collision. The bus was about three lengths away when the car entered the road.\nThe plaintiff in his reply alleges that notwithstanding the negligence of the deceased, if any, the defendant \u201cby refraining from the negligent acts and omissions alleged in the complaint\u201d could have avoided the injury and thus had the last clear chance to do so.\nIssues of (1) negligence, (2) contributory negligence, (3) last clear chance, and (4) damages were submitted to the jury which answered tbe first three issues \u201cyes\u201d and assessed damages. Tbe court entered judgment on tbe verdict and defendants excepted and appealed.\nDon C. Young and Chas. G. Lee, Jr., for plaintiffs, appellees.\nSmathers & Meehins for defendants, appellants." }, "file_name": "0444-01", "first_page_order": 492, "last_page_order": 498 }