#### ROBERT L. HURLEY, Individually and as Administrator of the ESTATE OF BARBARA POOLE HURLEY, deceased v. KEVIN WAYNE MILLER, and HARVEY LEE SMITH, JR., and wife, KELLY BOGER SMITH, d/b/a HLS TRUCKING, and HLS TRUCKING, INC.

No. 136A94

(Filed 10 February 1995)

Automobiles and Other Vehicles § 577 (NCI4th)— last clear chance — insufficient evidence

The decision of the Court of Appeals remanding for a new trial on the ground that the trial court erred by failing to submit an issue of last clear chance to the jury is reversed for the reasons stated in the dissenting opinion in the Court of Appeals.

Am Jur 2d, Automobiles and Highway Traffic §§ 438-441.

Justice Orr did not participate in the consideration or decision of this case.

Appeal by defendants pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 113 N.C. App. 658, 440 S.E.2d 286 (1994), affirming in part and reversing in part the judgment of Davis (James C.), J., at the 8 June 1992 session of Superior Court, Cabarrus County and remanding for a new trial on the issue of last clear chance. Submitted on 9 January 1995 without oral argument, by motion of the parties, pursuant to Rule 30(d) of the North Carolina Rules of Appellate Procedure.

Wallace and Whitley, by Michael Doran, for plaintiff-appellee.

Wishart, Norris, Henninger & Pittman, PA, by Kenneth R. Raynor, for defendant-appellants.

PER CURIAM.

For the reasons stated in the dissenting opinion of Judge Cozort, the decision of the Court of Appeals is reversed. The case is remanded to the Court of Appeals for further remand to the Superior Court, Cabarrus County for reinstatement of the trial court’s judgment.

REVERSED AND REMANDED.

Justice Orr did not participate in the consideration or decision of this case.