# Hurley v. Miller

> Court of Appeals of North Carolina · March 1, 1994 · 113 N.C. App. 658

URL: https://www.frixlaw.com/law-library/cases/9569326

## Case

- **Full name:** ROBERT L. HURLEY, Individually and as Administrator of the Estate of BARBARA POOLE HURLEY, Deceased, Plaintiffs v. KEVIN WAYNE MILLER, and HARVEY LEE SMITH, JR. and Wife, KELLY BOGER SMITH, D/B/A HLS TRUCKING, and HLS TRUCKING, INC., Defendants
- **Court:** Court of Appeals of North Carolina
- **Decided:** March 1, 1994
- **Citations:** 113 N.C. App. 658; 440 S.E.2d 286; 1994 N.C. App. LEXIS 212
- **Precedential status:** Published
- **Opinion:** Concurring in part by Cozort
- **Judges:** Eagles, Orr, Cozort
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by Hurley v. Miller, 339 N.C. 601 (1995).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9569326

## Opinion text

Judge COZORT
concurring in part and dissenting in part.
I concur with the majority’s conclusion that the trial court did not err in its instructions on negligence and contributory negligence. I disagree, however, with the majority’s conclusion that the trial court should have instructed on last clear chance.
I find the record devoid of any evidence that the defendant had the last clear chance to avoid the accident. The evidence showed that the decedent stopped her car “half on, half off” the southbound lane of travel. Defendant Miller, who was driving in the southbound lane within the posted speed limit, realized that he could not stop before hitting decedent’s car and steered his truck to the left far enough to avoid hitting decedent’s car. As defendant Miller’s truck approached decedent’s car, the decedent, without giving a left turn signal, turned left into the path of defendant Miller’s truck a “split second” before defendant Miller’s truck reached decedent’s car. Miller swerved back to the right; however, there was not enough time to avoid the collision.
I find no evidence that defendant Miller had the means to avoid the collision after the decedent started her left turn into the path of defendant Miller’s truck. This lack of evidence of time to avoid the collision distinguishes this case from VanCamp v. Burgner, 328 N.C. 495 , 402 S.E.2d 375 (1991), and the trial court correctly refused to submit last clear chance to the jury.
I vote no error.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9569326. Public record. Not legal advice.