{ "id": 8601676, "name": "N. E. AYDLETT, Administrator of the Estate of GROVER CLEVELAND CARTWRIGHT, Deceased, v. SILAS A. KEIM", "name_abbreviation": "Aydlett v. Keim", "decision_date": "1950-09-20", "docket_number": "", "first_page": "367", "last_page": "371", "citations": [ { "type": "official", "cite": "232 N.C. 367" } ], "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": "57 S.E. 2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "231 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629886 ], "opinion_index": 0, "case_paths": [ "/nc/231/0373-01" ] }, { "cite": "52 S.E. 2d 355", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "230 N.C. 155", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628854 ], "opinion_index": 0, "case_paths": [ "/nc/230/0155-01" ] }, { "cite": "45 S.E. 2d 539", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "228 N.C. 433", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626701 ], "opinion_index": 0, "case_paths": [ "/nc/228/0433-01" ] }, { "cite": "36 S.E. 2d 246", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "225 N.C. 717", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617513 ], "opinion_index": 0, "case_paths": [ "/nc/225/0717-01" ] }, { "cite": "34 S.E. 2d 211", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "225 N.C. 323", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8606860 ], "opinion_index": 0, "case_paths": [ "/nc/225/0323-01" ] }, { "cite": "18 S.E. 2d 246", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "220 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11306824 ], "opinion_index": 0, "case_paths": [ "/nc/220/0573-01" ] }, { "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" ] }, { "cite": "35 S.E. 2d 337", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "225 N.C. 444", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610787 ], "opinion_index": 0, "case_paths": [ "/nc/225/0444-01" ] } ], "analysis": { "cardinality": 636, "char_count": 11966, "ocr_confidence": 0.5, "pagerank": { "raw": 3.6666301919275645e-07, "percentile": 0.8907650600479025 }, "sha256": "bf649a846e96076e2a6a2b63510309ba452d3fd1ad74e2cda6eb2a5e8e413522", "simhash": "1:133042928a4eb54a", "word_count": 2090 }, "last_updated": "2023-07-14T20:42:59.145817+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "N. E. AYDLETT, Administrator of the Estate of GROVER CLEVELAND CARTWRIGHT, Deceased, v. SILAS A. KEIM." ], "opinions": [ { "text": "DeNNY, J.\nThe defendant excepted to the submission of the third issue. Therefore, it becomes necessary to determine whether the evidence adduced in the trial below is sufficient to support a verdict in favor of the plaintiff on that issue. And in our opinion there is no evidence to support an affirmative answer thereto.\nThe doctrine of last clear chance or discovered peril is firmly established in our law; and is clearly and concisely stated by Barnhill, J., speaking for the Court in Ingram v. Smoky Mountain Stages, Inc., 225 N.C. 444, 35 S.E. 2d 337, as follows : \u201cTbe 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 tbe injurious consequences to tbe plaintiff, notwithstanding plaintiff's 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. Reirson, 210 N.C. 185, 185 S.E. 627.\u201d\nApplying this doctrine to the evidence in the present case, it does not appear that the defendant was put on notice that plaintiff\u2019s intestate was drunk, ill or otherwise incapacitated. Conceding plaintiff\u2019s intestate was standing by bis car, as contended by the plaintiff, nothing else appearing, the defendant was entitled to assume that be would exercise ordinary care for bis own safety. This Court said in Reeves v. Staley, 220 N.C. 573, 18 S.E. 2d 246, speaking through Winborne, J.: \u201cA motorist is not under a duty of anticipating negligence on the part of others, but in the absence of anything which gives or should give notice to the contrary, a person is entitled to assume, and to act on the assumption, that others will exercise ordinary care for their own safety,\u201d citing numerous authorities. See also Hobbs v. Coach Co., 225 N.C. 323, 34 S.E. 2d 211; Tysinger v. Dairy Products, 225 N.C. 717, 36 S.E. 2d 246; Hill v. Lopez, 228 N.C. 433, 45 S.E. 2d 539; Cox v. Lee, 230 N.C. 155, 52 S.E. 2d 355; Bobbitt v. Haynes, 231 N.C. 373, 57 S.E. 2d 361.\nMoreover we do not think the evidence before us places the plaintiff\u2019s intestate in a place of peril until it was too late for the doctrine of last clear chance to be invoked. \u201cThe doctrine is clearly inapplicable where the peril and defendant\u2019s discovery of the peril or his duty to discover it arose so shortly before the accident as to afford him no opportunity by the exercise of the greatest possible diligence, to avoid the injury. the doctrine contemplates a last \u2018clear\u2019 chance, not a last \u2018possible\u2019 chance, to avoid the accident; it must have been such a chance as would have enabled a reasonably prudent man in like position to have acted effectively.\u201d 65 C.J.S., Negligence, Sec. 137 (2), p. 774, et seq. There is no evidence to show bow long the plaintiff\u2019s intestate bad been out of bis car, or bow long be bad been on the highway prior to the discovery of bis presence thereon by the defendant. the application of the last clear chance doctrine is invoked only where there was a sufficient interval of time between the plaintiff\u2019s negligence and bis injury during which the defendant, by the exercise of reasonable care could or should have discovered the perilous position of the plaintiff in time to avoid injuring him.\nThe original or primary negligence of a defendant, which would warrant answering the first issue in the affirmative, cannot be relied upon by the plaintiff to recover under the last clear chance doctrine. A recovery on the original negligence is barred in such cases by the plaintiff\u2019s contributory negligence. The plaintiff\u2019s right to recover, notwithstanding his own negligence, must arise out of a factual situation which gave the defendant an opportunity, through the exercise of reasonable care, to have avoided the injury to him, but failed to do so. Ingram v. Smoky Mountain Stages, Inc., supra; 38 Am. Jur., Negligence, Sec. 218, p. 903, et seq.\nThe defendant\u2019s exception to the submission of the third issue is sustained.\nThe answer to the first two issues are determinative of the rights of the parties in this action. The contributory negligence of plaintiff\u2019s intestate was conceded by the plaintiff in the trial below and the jury so instructed. Consequently the defendant is entitled to judgment.\nThe case is remanded for judgment in accord with this opinion.\nThe plaintiff\u2019s motion to dismiss the appeal for failure to group and number the exceptions, as required by Eule 19 (3) of the Eules of Practice in the Supreme Court, is disallowed.\nSince the disposition of the appeal necessitated the consideration of only one exception, and the exceptions are separately numbered, although not separately assigned as error, we have elected in our discretion to dispose of the ease on its merits without referring the transcript to the clerk or some attorney to state the exceptions as authorized by the rule.\nError and remanded.", "type": "majority", "author": "DeNNY, J." } ], "attorneys": [ "John B. McMullan for plaintiff.", "L. T. Seawell, of Norfollc, Va., and Worth <& Horner for defendant." ], "corrections": "", "head_matter": "N. E. AYDLETT, Administrator of the Estate of GROVER CLEVELAND CARTWRIGHT, Deceased, v. SILAS A. KEIM.\n(Filed 20 September, 1950.)\n1. Negligence \u00a7 10\u2014\nThe doctrine of last clear chance is applicable only when a sufficient interval elapses between the time defendant discovers or should have discovered plaintiff\u2019s perilous position to enable a reasonably prudent man in like position to have avoided the injury notwithstanding plaintiff\u2019s contributory negligence.\n2. Same\u2014\nDefendant\u2019s original or primary negligence is barred by plaintiff\u2019^ contributory negligence and cannot be relied upon by plaintiff as a basis for the doctrine of last clear chance.\n3. Automobiles \u00a7\u00a7 8a, 16\u2014\nNothing else appearing, a motorist is entitled to assume that a person on the highway will exercise ordinary care for his own safety.\n4. Automobiles \u00a7 18e \u2014 Evidence held insufficient to support submission of issue of last clear chance.\nEvidence tending to show that defendant turned to his left to avoid a ear standing stationary in front of him on his right side of the highway at night, that a man suddenly appeared some three or four feet to the left of the parked ear as defendant was passing it, that defendant swerved to his left, but that the man stumbled or walked into the side of defendant\u2019s ear, causing injuries resulting in death, without evidence as to how long he had been in this position of peril, is held, insufficient to support the submission of the issue of last clear chance, since there is no evidence that defendant was put on notice that intestate was drunk, ill, or otherwise incapacitated, or, even so, that defendant could or should have discovered the peril in time to have avoided the injury.\n5. Appeal and Error \u00a7 23\u2014\nWhere the exceptions are separately numbered and only one of them is necessary to be considered in disposing of the appeal, the Supreme Court in its discretion may dispose of the case on its merits notwithstanding failure of appellant to separately assign the exceptions as error. Rule of Practice in the Supreme Court 19 (3).\nAppeal by defendant from Halstead, Special Judge, at May Term, 1950, of PasquotaNic.\nCivil action to recover damages for wrongful death.\nAbout 7:00 o\u2019clock, or shortly thereafter, on 16 April, 1949, the plaintiff\u2019s intestate was operating his motor vehicle southwardly on the highway leading from Elizabeth City to \"Weeksville. Approximately five minutes before he sustained his fatal injury he was observed on the highway between 400 and 500 yards from the point where the accident occurred, driving his car without lights. The car \u201cwas being operated in a zig-zag direction . . . between 5 and 10 miles. The car was zigzagging between the center line of the road and off on the shoulder on the right side.\u201d The plaintiff\u2019s intestate parked his car on the right hand side of the highway. The right wheels were off the pavement. The paved highway was approximately 22 feet wide. At the time of the accident the motor of plaintiff\u2019s intestate\u2019s car was running and the left door was partly open. There was evidence that the plaintiff\u2019s intestate had been drinking and was under the influence of liquor shortly before the accident. A pint bottle containing a small amount of whiskey was found on the front seat of Cartwright\u2019s car by the officer investigating the accident. It is -alleged by the plaintiff in his complaint that his intestate had become ill from fumes of carbon monoxide escaping from the engine of his car or from some other reason unknown to plaintiff, and that he parked his car and got out on the highway where he remained momentarily in a dazed or semi-dazed condition, attempting to relieve himself of said illness.\nAccording to defendant\u2019s evidence, he saw the Cartwright car when he had approached within approximately 200 feet of it, and when he got within approximately 100 feet of -it he saw it was not moving. He further testified, \u201cI then turned out. There was plenty of room to miss the car, turned to my left and slowed down a certain amount, and later, when I got fairly close, a man appeared out there that was not in view before. He appeared to be about 3 or 4 feet from the car, so I tried to allow plenty of room. I pulled over as far as I could and put on my brakes. ... I should have missed him two and a half or three feet; I missed him; I heard a bump on the side of my car; if was .a very slight bump. I could barely hear it and there was no impact. You could not feel anything. ... I stopped as quickly as I could, I judge about 20 feet further and looked for a space to get out of the way.\u201d\nOn cross-examination, the defendant further testified: \u201cWhen I saw \u25a0the man naturally I swerved as much as I could to get away. ... I did not swerve to miss the car and did not say I did. I said I saw the car and that I pulled over to miss it and that when I got closer I saw the man and then swerved to the left. My car did not hit Mr. Cartwright. . . . The man was not standing still. He was moving and that is why I pulled \u25a0over as far as I could.\u201d\nMiss Donita Keim, daughter of the defendant, testified: \u201cAs we were driving along the highway, I noticed that car parked on the road and did not notice the man until we got up very close to the car, and then, as we went by him, my father swerved to miss him, and he walked into the car. I saw him. He either walked or staggered, but he did go into the car as we passed him. I was sitting on the right side, near the window.\u201d\nThe defendant and his daughter were the only eyewitnesses to the accident. The plaintiff, however, offered several witnesses who testified they heard the screaming of brakes and went to the scene of the accident and found Cartwright lying on his back in front of his car. The defendant\u2019s car was parked on the left shoulder of the road about 30 or 35 feet from Cartwright\u2019s car. These witnesses testified that the defendant testified at the Coroner\u2019s hearing that he did not see the parked car until he was \u201cright close up on it and, of course, when he saw it he threw on the brakes and swerved to the left and when he swerved to the left a man was standing beside it and his car struck him.\u201d\nThe plaintiff in his reply alleges that notwithstanding the negligence of the deceased, if any, the defendant by the exercise of reasonable care and prudence might have avoided the injurious consequences to the plaintiff\u2019s intestate.\nIssues of (1) negligence, (2) contributory negligence, (3) last clear chance, and (4) damages were submitted to the jury, which answered the first three issues \u201cYes\u201d and awarded damages. The court entered judgment accordingly, and the defendant excepted and appealed.\nJohn B. McMullan for plaintiff.\nL. T. Seawell, of Norfollc, Va., and Worth <& Horner for defendant." }, "file_name": "0367-01", "first_page_order": 415, "last_page_order": 419 }