Morris v. Seashore Transportation Co.

ClaRksoN, J.

The Only question involved upon this appeal is whether the court below erred in sustaining the defendant’s motion of nonsuit, at the close of plaintiff’s evidence. O. S., 567. We are of the opinion that there was error in the court’s granting the motion.

N. C. Code, 1935 (Michie), sec. 2621 (59), is as follows:

“Signals on

starting,

stopping, or turning:

(a) The driver of any vehicle upon a highway, before starting, stopping, or turning from a direct line, shall first see that such movement can be made in safety and if any pedestrian may be affected by such movement shall give a clearly audible signal by sounding the horn, and whenever the operation of any other vehicle may be affected by such movement shall give a signal as required in this section plainly visible to the driver of such other vehicle of the intention to

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make such movement, (b) Tbe signal herein required shall be given by means of the hand and arm in the manner herein specified, or by any approved mechanical or electrical signal device, except that when a vehicle is so constructed or loaded as to prevent the hand and arm signal from being visible both to the front and rear the signal shall be given by a device of a type which has been approved by the department. Whenever the signal is given the driver shall indicate his intention to start, stop, or turn by extending the hand and arm from and beyond the left side of the vehicle as hereinafter set forth. Left turn — hand and arm horizontal, forefinger pointing. Right turn — hand and arm pointing upward. Stop — hand and arm pointing downward. All signals to be given from left side of vehicles during last fifty feet traveled.”

Conceding that plaintiff was guilty of contributory negligence in not observing the rule of the road, and was to some extent on the wrong side, yet there are other provisions applicable on the facts in this ease. N. C. Code, 1935 (Michie), secs. 2621 (54), 2621 (55). Also sec. 2621 (57), which is as follows:

"Following too closely

— (a) The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent with regard for the safety of others and due regard to the speed of such vehicles and the traffic upon the condition of the highway.”

The defendant’s bus was traveling behind the automobile of plaintiff. It was the duty of the driver to use due care in following and passing— such care as an ordinarily careful and prudent man would exercise under like and similar circumstances, to avoid the injury. This was a question for the jury — the last clear chance doctrine. Of course, if plaintiff’s negligence was the proximate cause of the injury, he cannot recover. We think the complaint, construed liberally, would permit of this issue of last clear chance.

In Shirley’s Leading Oases in the Common Law, 3d Ed., pp. 269-270, referring to

Davies v.

Mann, 10 M. & W., 546, is the following: “The owner of a donkey fettered its forefeet, and in that helpless condition turned it into a narrow lane. The animal had not disported itself there very long when a heavy wagon belonging to the defendant came rumbling along. It was going a great deal too fast, and was not being properly looked after by its driver; the consequence was that it caught the poor beast, which could not get out of the way, and killed it. The owner of the donkey now brought an action against the owner of the wagon, and, in spite of his own stupidity, was allowed to recover, on the ground that

if the driver of the wagon had been decently careful the consequences of the plaintiff's negligence would have been averted.

‘Although,’ said Parke, B., ‘the ass may have been wrongfully there, still the defendant was bound to go along the road at such a pace as would be likely to prevent mischief. Were this not so, a man might justify the driv

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ing over goods left on a public highway, or even over a man lying’ asleep there, or the purposely running against a carriage going' on the wrong side of the road.’ But

Davies v. Harm

engrafts an important qualification on the rule that the negligence of the plaintiff himself disentitles him to complain of the defendant’s negligence.

If the defendant by being ordinarily careful would have averted the consequence of the plaintiff's negligence

— in other words, if the regrettable accident would never have happened, if the defendant had behaved as he ought to have done— then the plaintiff is entitled to recover in spite of his negligence. . . .

The donkey case qualification may be put as correctly and more simply by saying that a plaintiff is not disentitled by his negligence unless such negligence was the

proximate cause

of the damage.”

Brogden, J.,

in

Redmon v. R. R.,

195 N. C., 764 (766-7), speaking to the subject, clearly sets forth the doctrine of last clear chance, as follows: “When must the trial judge submit an issue of last clear chance to the jury? The last clear chance doctrine is the duty imposed by the humanity of the law upon a party to exercise ordinary care in avoiding injury to another who has negligently placed himself in a situation of danger. The doctrine is said to have sprung from the celebrated case of

Davies v. Mann,

10 M. & W., 546, decided in 1842, and is commonly known as the hobbled ass case. . . . The principle announced has been clearly stated by

Stacy, J.,

in

Haynes v. R. R.,

182 N. C., 679 , 110 S. E., 56 , as follows: ‘It has been held uniformly with us that, notwithstanding the plaintiff’s contributory negligence, if the jury should find from the evidence that the defendant, by the exercise of ordinary and reasonable care, could have avoided the injury, and failed to do so, and had the last clear chance to so avoid it, then the defendant would be liable in damages.’ To the same effect is the utterance of

Brown, J.,

in

Cullifer v. R. R.,

168 N. C., 309 , 84 S. E., 400 : ‘It is well settled in this State that where the plaintiff is guilty of contributory negligence the defendant must exercise ordinary care and diligence to avoid the consequences of the plaintiff’s negligence, and if by exercising due care and diligence the defendant can discover the situation of the plaintiff in time to avoid injury, the defendant is liable if it fails to do so-.’ ”

Gunter v. Wicker,

85 N. C., 310 ;

Wheeler

v.

Gibbon,

126 N. C., 811 ;

Ray v. R. R.,

141 N. C., 84 ;

Casada v. Ford,

189 N. C., 744 ;

Caudle v. R. R.,

202 N. C., 404 .

For the reasons given, the judgment must be

Reversed.

Devin, J., took no part in the consideration or decision of this case.