Brown v. George

Ness,-Justice

(dissenting):

In holding the trial court erred in charging last clear chance to the jury, the majority fails to apply our recent holding in *187 Cooper v. Driggers, 276 S. C. 299, 277 S. E. (2d) 893 (May, 1981). In Cooper , opinion by Justice Littlejohn, we concluded:

“The doctrine [of last clear chance] is not applicable in every case where contributory negligence is pled.

“It is applicable only when and if the defendant sees that a negligent plaintiff is in a predicament from which he may not extricate himself and the defendant has an opportunity to avoid the injury in spite of the conduct of the plaintiff ” (Emphasis added.)

Here the evidence shows the plaintiff-respondent was negligent. He was intoxicated when he crossed the highway. Further, there is testimony to establish the defendant-appellant had an opportunity to avoid the accident.

Under the evidence presented, the jury could easily have found the driver of the oncoming vehicle had a clear opportunity to avoid striking the pedestrian. Arguably all appellant had to do to avoid the accident was reduce his speed of 50-55 mph enough to give respondent sufficient time to finish crossing the road and clear the way. The record shows respondent was less than two feet from crossing the road when the collision occurred.

Moreover, appellant’s own testimony is highly suspicious considering the amount of time and distance he had to observe respondent before the collision occurred. Appellant testified he first saw respondent at a distance of approximately 250 yards. (2 and xk football field lengths away). He further stated respondent was crossing the highway at a “fast gait” and that he blew his horn at respondent and noticed respondent, “was impaired in some way.” Appellant said he was traveling at a speed of 50-55 mph, in the northbound lane. The physical evidence showed that appellant’s vehicle struck respondent about two feet from the edge of the highway in the northbound lane. Thus respondent had to proceed only two more feet to complete crossing the highway. At a speed of 50-55 mph, it took appellant approximately 8-10 seconds to travel the 250 yards, more than sufficient time to avoid the collision which rebuts the statement in the majority opinion that respondent walked into appellant’s sliding car.

The majority does however, note that the right front of appellant’s car struck respondent, which would infer ap *188 pellant could have avoided hitting the respondent by veering his car slightly to the left.

Considering the discrepancies in the facts, I disagree with the majority’s determination that this was an emergency which arose so suddenly there was no time for appellant to avoid the accident. I would hold it was a jury issue as to whether the 250 yard distance provided appellant with sufficient time to avoid the accident so that a charge to the jury on last clear chance was not only proper but essential for determination of this case.

In addition, the majority would hold that by including the words “and condition” in the charge to the jury regarding the duty of a pedestrian, the trial court committed prejudicial error. I disagree.

This was a complicated trial involving multiple legal theories of negligence, contributory negligence, the doctrine of last clear chance, and the legal duty owed by pedestrians as well as drivers of motor vehicles. The judge’s charge to the jury must be considered as a whole before assignment of prejudicial error will lie to a particular portion complained of. Waldrup v. Metropolitan Life, 274 S. C. 344, 263 S. E. (2d) 652 (1980).

The lower court’s charge to the jury consisted of fourteen transcript pages plus three pages of clarification. When considered as a whole, I find no prejudicial error to require reversal.

The issues here were factual and properly decided by the jury and I would affirm.

Lewis, C. J., concurs.