The opinion
Judge Webb
dissenting in part, concurring in part.
I dissent from that part of the majority opinion which holds it was error not to submit an issue as to last clear chance.
I believe that last clear chance, as applied to this case, would allow recovery for the plaintiff although the jury found he was contributorily negligent if the jury could also find that after the plaintiff, by his negligence, had placed himself in a position from which he was unable to escape, the defendant’s failure to use due care was a proximate cause of the injury. I do not believe the jury could so find from the evidence in this record. It was not until the defendant’s vehicle was so close to the plaintiff that the plaintiff was unable to move out of its path that the plaintiff was in a position of helpless peril. The defendant’s vehicle was then only a fraction of a second away from the plaintiff. I do not believe we should hold that a jury could find that the defendant could reasonably have avoided the accident in this short period of time.
In Exum v. Boyles, 272 N.C. 567 , 158 S.E. 2d 845 (1968) Justice Lake was careful to point out that the deceased was standing beside a vehicle and would have had to run around one end or the other of the vehicle to avoid the accident. The plaintiff in that case was in the position of helpless peril for several seconds, allowing the defendant in that case an opportunity to avoid the injury. The defendant in this case had no such opportunity. I would affirm the superior court in its refusal to submit the issue of last clear chance.
I vote with the majority in all other aspects.