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Keywords

plaintiffdefendantnegligencetrialcontributory negligence
plaintiffdefendantnegligencetrialverdictmotioncontributory negligence

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Stephens v. Mann, 50 N.C.App. 133, 272 S.E.2d 771

Facts

On July 4, 1978, the plaintiff and defendant were moving furniture when the plaintiff fell from the back of the defendant's pickup truck. The furniture was not secured, and after a bookcase fell off, the plaintiff chose to ride in the back to hold down the furniture. Despite being aware of the previous incidents, she was not holding on to anything and was eventually thrown from the truck when a mattress flew up. The defendant, who was driving at a reduced speed, could not see the plaintiff in the back of the truck.

Evidence for plaintiff tends to show that on 4 July 1978, plaintiff and defendant were moving furniture from Raleigh to Coats, North Carolina. The furniture belonged to a girlfriend of plaintiff's son Doug Stephens. The first load was delivered without incident. Another load of furniture was placed into defendant's truck. The load was not secured, and the tailgate was down. Plaintiff was seated in the cab of the truck and defendant was driving. Plaintiff's two sons, Doug and John, followed in separate vehicles. As the truck travelled down Fannie Brown Road, a bookcase fell off. The bookcase was reloaded, and plaintiff got into the back of the truck to hold down the furniture. Plaintiff testified she didn't know if defendant told her she should not ride in the back, that it was dangerous. John Stephens testified that he did not hear such a warning.

Issue

Did the trial court err in refusing to instruct the jury on the doctrine of last clear chance?

Plaintiff's sole assignment of error is the trial court's refusal to submit to the jury the issue of last clear chance.

Rule

The doctrine of last clear chance allows a plaintiff to recover despite their own contributory negligence if the defendant could have avoided the injury by exercising reasonable care after the plaintiff's negligence had occurred.

The doctrine of last clear chance allows a plaintiff to recover despite his own contributory negligence when the defendant could have avoided plaintiff's injuries by exercising reasonable care and prudence, after plaintiff's negligence had occurred, but failed to do so.

Analysis

The court determined that the plaintiff did not establish that she was in a position of helpless peril that the defendant could have seen or understood. The evidence showed that the plaintiff was aware of the risks and had chosen to ride in the back of the truck despite the unsecured load. The defendant's inability to see the plaintiff and the fact that she was not in a helpless condition at the time of the accident led the court to conclude that the last clear chance doctrine was not applicable.

Applying the above stated law to the facts of this case, plaintiff has failed to establish that she had placed herself in a position of helpless peril which defendant saw and understood (or should have seen and understood) and that defendant could have, but did not, avoid the injury to plaintiff.

Conclusion

The court affirmed the trial court's judgment in favor of the defendant, concluding that there was no error in refusing to submit the last clear chance issue to the jury.

With this holding, it is unnecessary to discuss defendant's assignment of error regarding the trial court's refusal to grant her motions for directed verdict.

Who won?

Defendant prevailed because the court found that the plaintiff failed to demonstrate that she was in a position of helpless peril that the defendant could have avoided.

Defendant prevailed because the court found that the plaintiff failed to demonstrate that she was in a position of helpless peril that the defendant could have avoided.

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