lying asleep on highway or on side of dirt road held negligent as a matter of lawSummary of this case from Nickell v. Russell
Filed 10 January, 1958
1. Automobiles 36 — There is no presumption of negligence from the mere fact that an accident has occurred.
2. Automobiles 42k — Evidence tending to show that a pedestrian, who had been without sleep for two days and nights, sat down by the side of a narrow dirt and gravel road and went to sleep, and that he was lying parallel with and between the ruts in the road when run over by defendant's car, is held to disclose contributory negligence as a matter of law on the part of the pedestrian.
3. Automobiles 33 — While a motorist, in the exercise of his duty to maintain a proper lookout, is required to anticipate that other travelers, including pedestrians, will be using the highway, he is not required to anticipate that a person will be lying prone on the highway.
4. Automobiles 45: Negligence 10 — The doctrine of last clear chance is not predicated on the original negligence of defendant, but upon his failure, after negligence and contributory negligence have canceled each other, to avoid the injury, and the doctrine cannot apply unless defendant has sufficient opportunity, in the exercise of ordinary care, to discover and appreciate plaintiff's perilous position in time to avoid injuring him.
5. Automobiles 42n — Evidence that plaintiff was lying prone, parallel with the ruts of a shady dirt road, that defendant was driving his automobile with the lights on low beam and could have seen plaintiff for a distance of some 200 feet, and that defendant did see an object in the road, which he mistook for an old box or trash, but didn't recognize the object as a body until too late to avoid injury, is held insufficient to show that defendant had opportunity to avoid the injury after he discovered or should have discovered plaintiff's perilous position, and therefore the doctrine of last clear chance does not apply to preclude nonsuit.
APPEAL by plaintiff from McKeithen, S.J., May, 1957 Term, RANDOLPH Superior Court.
Ottway Burton, for plaintiff, appellant.
McNeill Smith and John Dortch.
Smith, Moore, Smith, Schell Hunter.
By: McNeill Smith, for defendant, appellee.
JOHNSON, J., dissenting.
PARKER AND BOBBITT, J.J., concur in dissent.
Civil action to recover for personal injuries to the plaintiff alleged to have resulted from the actionable negligence of the defendant in the operation of his automobile at an excessive rate of speed, without proper lights, and in a reckless and careless manner. The defendant denied negligence and pleaded contributory negligence on the part of the plaintiff. By reply, the plaintiff alleged the defendant had the last clear chance to avoid the injury.
The plaintiff, a soldier, was at home on leave. Just before dark on July 4, 1955, he sat down by the side of a narrow dirt and gravel road in Randolph County and went to sleep. He had been drinking beer and had not slept for two days and nights. He was awakened by being run over by an automobile. AS a result he suffered serious and permanent injuries.
The plaintiff introduced the adverse examination of the defendant in which appeared the following: "There is a dirt road all the way from my brother's residence to where I ran over Barnes. No, I did not cut my lights on just as I crossed the Jackson Creek bridge. I cut them on before, when I struck the hill. I cut them on dim. I didn't cut them on bright. When I say dim, I mean the lower division of my driving lights. . . . I did not cut on parking lights. . . . As to how far I was from him when I first saw him, I would say five or six feet . . . from my front bumper . . . he had on a pair of pants, no shirt, army shoes. . . . As to whether I saw him, I saw an object. I had no idea it was a man. Looked like a box or something. Looked like an old box where somebody had thrown out some trash. . . . I didn't see a head, I didn't recognize it was a body. My car straddled Mr. Barnes. Those are two ruts and he was lying . . . half way between the two ruts. This is a dirt road with gravel on it. The two ruts I speak of were used for single lane traffic. . . . The part of my car that hit him was the oil pan. . . . As to how many feet of vision I had as I rounded the curve . . . facing the location that Barnes was in the road at that particular place, . . . I would say 20 or 25 feet . . . road makes a turn there. . . . I went 25 feet past him before I brought my vehicle to a stop. . . . I was making about 30 as I was in no hurry. It was a crooked road . . ."
There was other evidence that the point where Barnes was run over could be seen for a distance of about 200 feet. There was no evidence automobile lights would enable the driver to see a man lying in the road at that distance, or at any particular distance. There was evidence that weeds, bushes, and trees grew on both sides of the road and some of the branches of the trees extended over the road. The accident occurred about 8:30 p. m.
At the close of plaintiff's evidence the court entered judgment of involuntary nonsuit, from which the plaintiff appealed.
The plaintiff's allegations of speed are not supported by evidence. While the plaintiff argues the defendant was driving after dark with lights on dim, it is obvious from the evidence, however, the defendant was operating his car with lights on low beam at a speed of about 30 miles per hour on a narrow, crooked, dirt and gravel road. The plaintiff's evidence is to the effect that as the defendant proceeded along this shaded dirt road he perceived some object in the road at a distance of 20 or 25 feet; that he thought it was a trash box. The evidence discloses the plaintiff was lying parallel with and between the ruts. Whether his head or his feet were in the direction of the defendant's approach is not disclosed.
If the case were made to turn solely on whether the defendant was negligent, the question might present some difficulty. Negligence is not presumed from the mere fact an accident has occurred. Lane v. Bryan, 246 N.C. 108, 97 S.E.2d 411; Fleming v. Twiggs, 244 N.C. 666, 94 S.E.2d 821; Shinault v. Creed, 244 N.C. 217, 92 S.E.2d 787; Mitchell v. Melts, 220 N.C. 793, 18 S.E.2d 406. However, the very fact the plaintiff, without sleep for two days and nights, attempted to make his bed in the middle or on the side of a crooked, shaded, dirt road, shows negligence as a matter of law. Holderfield v. Trucking Co., 232 N.C. 623, 61 S.E.2d 904. A driver of an automobile may anticipate that other travelers will be using the highway and he should be on the lookout for them. However, it would seem to be too much to require him to anticipate the highway would be used as sleeping quarters. Of course, a pedestrian has the right to use the highway, but a pedestrian is a foot traveler, and the right to walk does not carry with it the right to lie down and go to sleep. One who voluntarily places himself in a position of known peril fails to exercise ordinary care for his own safety. Bogen v. Bogen, 220 N.C. 648, 18 S.E.2d 162.
The plaintiff, apparently realizing the danger of placing his reliance on the issues of negligence and contributory negligence, contends that the judgment of involuntary nonsuit should be reversed upon the theory the defendant had the last clear chance to avoid the injury. Liability under the last clear chance, or discovered peril, doctrine is predicated, not on any original negligence of the defendant, but upon his opportunity to avoid injury after discovering the perilous position in which another has placed himself. Defendant's liability is based upon a new act of negligence arising after negligence and contributory negligence have canceled each other out of the case. Liability on the new act arises after the defendant has had sufficient opportunity, in the exercise of ordinary care, to discover and to appreciate the plaintiff's perilous position in time to avoid injuring him. Garrenton v. Maryland, 243 N.C. 614, 91 S.E.2d 596; Wade v. Sausage Co., 239 N.C. 524, 80 S.E.2d 150; Mount Olive Mfg. Co., v. R. R., 233 N.C. 661, 65 S.E.2d 379; Holderfield v. Trucking Co., supra; Johnson v. Morris' Administratrix, (Ky.) 282 S.W.2d 835.
The evidence in this case is insufficient to show the defendant had the opportunity to avoid the injury after he discovered, or should have discovered, the plaintiff's perilous position. The judgment of nonsuit entered in the court below at the close of the plaintiff's evidence is