Negligence--last clear chance--evidence sufficient for instruction
The trial court erred in a negligence action by not instructing the jury on the doctrine of
last clear chance where plaintiff's intestate was working in a metal trailer which was moving
adjacent to and touching a cotton picker driven by defendant and plaintiff's intestate was
electrocuted when the cotton picker hit a high-voltage power line. The record in the case
supports a reasonable inference of each essential element of the doctrine; plaintiff's intestate
placed himself in a position of peril in that he had had an opportunity to see the power line and
knew that defendant was operating the cotton picker toward the power line; defendant should
have been aware of intestate's perilous position; defendant had the time and ability to avoid the
accident in that he was, literally, in the driver's seat and intestate was engulfed by stacks of
cotton once he was in the trailer and was no longer in a position to see the power line; there was
abundant evidence to support an inference of negligence by defendant and the jury found
defendant to have been negligent; and there was no dispute that intestate was electrocuted when
defendant drove the cotton picker into the power line. Appeal by plaintiff from judgment entered 15 October 1997 by
Judge James M. Webb in Sampson County Superior Court. Heard in
the Court of Appeals 19 November 1998.
Ward and Smith, P.A., by Teresa DeLoatch Bryant and A.
Charles Ellis; and Albert D. Kirby, Jr. & Assocs., by Albert
D. Kirby, Jr., for plaintiff-appellant.
Anderson, Johnson, Lawrence, Butler & Bock, by Steven C.
Lawrence and Catherine Ross Dunham, for defendant-appellees.
McGEE, Judge.
This cases arises from a farm accident that resulted in the
death of plaintiff's intestate. The record in this case tends to
show that plaintiff's intestate and defendant Mark Bass were
working together in October 1994 picking cotton on a farm in
Duplin County. At the time of the accident, defendant was
operating a cotton picker, moving it forward as it dumped cotton
into a metal trailer adjacent to the cotton picker. The cotton
picker and trailer were so close together they were touching. As
defendant operated the cotton picker, driving it forward,
plaintiff's intestate was in the trailer to "walk down" or tamp
down the cotton as it was dumped into the trailer. Defendant
drove the cotton picker into a high-voltage power line. When the
cotton picker hit the line, plaintiff's intestate was
electrocuted. Plaintiff, representing the estate of the deceased, filed
this negligence action. Allegations against defendants Joe Bass
and Albert Johnson were dismissed. The case against defendant
Mark Bass went to trial. A jury found that defendant Mark Bass
was negligent and that plaintiff's intestate was contributorily
negligent. Based on that verdict, the trial court entered
judgment against plaintiff, ordering that plaintiff have and
recover nothing against defendant Mark Bass and that the action
be dismissed with prejudice. Plaintiff appeals.
Plaintiff assigns error to the trial court's denial of
plaintiff's request for a jury instruction on the doctrine of
"last clear chance." Plaintiff argues that plaintiff met the
common law requirements for a "last clear chance" instruction.
We agree.
Our Supreme Court has addressed the doctrine of last clear
chance on numerous occasions. In Exum v. Boyles, 272 N.C. 567,
158 S.E.2d 845 (1968), the Court said,
[I]t is well established in this State that where the
defendant does owe the plaintiff the duty of
maintaining a lookout and, had he done so, could have
discovered the plaintiff's helpless peril in time to
avoid injuring him by then exercising reasonable care,
the doctrine of the last clear chance does impose
liability if the defendant failed to take such action
to avoid the injury. This is in accord with . . . the
majority view in other American jurisdictions.
Id. at 576, 158 S.E.2d at 853 (citations omitted). In Vernon v. Crist, 291 N.C. 646, 231 S.E.2d 591 (1977), our
Supreme Court said,
The last clear chance or discovered peril
doctrine applies "if and when it is made to
appear that the defendant discovered, or by
the exercise of reasonable care should have
discovered, the perilous position of the
party injured or killed and could have
avoided the injury, but failed to do so."
In this jurisdiction last clear chance
is "but an application of the doctrine of
proximate cause." If defendant had the last
clear chance to avoid injury to the plaintiff
and failed to exercise it, then his
negligence, and not the contributory
negligence of the plaintiff, is the proximate
cause of the injury.
Id. at 654-55, 231 S.E.2d at 596 (citations omitted).
In Trantham v. Sorrells, 121 N.C. App. 611, 468 S.E.2d 401,
disc. review denied, 343 N.C. 311, 471 S.E.2d 82 (1996), our
Court said,
The issue of last clear chance, "[m]ust
be submitted to the jury if the evidence,
when viewed in the light most favorable to
the plaintiff, will support a reasonable
inference of each essential element of the
doctrine." To obtain an instruction on the
doctrine of last clear chance, the plaintiff
must show the following essential elements:
1) The plaintiff, by her own negligence
put herself into a position of helpless
peril;
2) Defendant discovered, or should have
discovered, the position of the
plaintiff;
3) Defendant had the time and ability to
avoid the injury;
4) Defendant negligently failed to do
so; and
5) Plaintiff was injured as a result of
the defendant's failure to avoid the
injury.
Id. at 612-13, 468 S.E.2d at 402 (citations omitted).
The case law in this State is consistent with the
Restatement (Second) of Torts:
§ 479. Last Clear Chance: Helpless Plaintiff
A plaintiff who has negligently subjected himself to a
risk of harm from the defendant's subsequent negligence
may recover for harm caused thereby if, immediately
preceding the harm,
(a) the plaintiff is unable to avoid it by the
exercise of reasonable vigilance and care, and
(b) the defendant is negligent in failing to utilize
with reasonable care and competence his then existing
opportunity to avoid the harm, when he
(i) knows of the plaintiff's situation and
realizes or has reason to realize the peril involved in
it or
(ii) would discover the situation and thus have
reason to realize the peril, if he were to exercise the
vigilance which it is then his duty to the plaintiff to
exercise.
§ 480. Last Clear Chance: Inattentive Plaintiff
A plaintiff who, by the exercise of reasonable
vigilance, could discover the danger created by the
defendant's negligence in time to avoid the harm to
him, can recover if, but only if, the defendant
(a) knows of the plaintiff's situation, and
(b) realizes or has reason to realize that theplaintiff is inattentive and therefore unlikely to
discover his peril in time to avoid the harm, and
(c) thereafter is negligent in failing to utilize with
reasonable care and competence his then existing
opportunity to avoid the harm.
Restatement (Second) of Torts, §§ 479 and 480 (1965).
We have carefully reviewed the record in this case and find
that it supports "a reasonable inference of each essential
element of the doctrine" of last clear chance. Trantham at 613,
468 S.E.2d at 402.
We address each element:
Element one: In answering this lawsuit, defendant Mark Bass
alleged that plaintiff's intestate, Isidro Moreno (Moreno), was
negligent in positioning the cotton trailer in close proximity to
the power line, and the evidence at trial supports an inference
of that alleged negligence. The evidence tends to show the power
line extended across the field within the view of Moreno. Moreno
positioned the cotton trailer in close proximity to the power
line. Moreno then climbed into the trailer to tamp down the
cotton as it was dumped into the trailer. One could infer that
by positioning the trailer near the power line and climbing into
the trailer, Moreno placed himself in a position of peril,
because he had had an opportunity to see the power line and he
knew that defendant was operating the cotton picker such that itwas moving toward the power line.
Element two: Defendant should have been aware of Moreno's
perilous position. The record repeatedly shows that defendant
was aware of the power line, or should have been aware of it, and
was aware that Moreno was in the trailer. During the trial,
plaintiff's attorney asked, "Mark, whenever you got into the
cotton picker and started to drive . . . toward the back of the
trailer to dump the cotton in it, nothing obstructed your view of
the power line before that happened, did it?" Defendant replied,
"No."
Defendant admitted he knew that Moreno was in the trailer as
the cotton picker approached the power line when, in his reply to
this lawsuit, defendant stated unequivocally that Moreno "was
within the metal cotton trailer for the purposes of compressing
the cotton, which was being deposited by the cotton picker[.]"
In his testimony during the trial, defendant said, "I remember
seeing [Moreno] in the back of the trailer."
Element three: The record amply supports an inference that
defendant had the time and ability to avoid the accident.
Defendant was, literally, in the driver's seat. He was operating
the cotton picker, and operating it in a field with which he was
familiar. He testified that he had picked cotton in that
particular field before, but that Moreno had not previouslypicked there. And defendant acknowledged during his testimony
that after he had started the cotton picker, he could have seen
the power line had he been paying attention. Plaintiff's
attorney asked defendant, "[W]hen you started to dump [the cotton
into the trailer], the wire was right in front of you
. . . [w]asn't it?" Defendant responded "yes." Plaintiff's
attorney then asked, "And, Mark, had you noticed it, you could
have seen that wire, couldn't you?" Defendant replied, "Yes,
that's correct." Defendant also testified that he had driven the
cotton picker forward several feet before hitting the power line.
Plaintiff's attorney asked, "So you had gone forward several feet
before contact was actually made. Is that correct?" Defendant
answered, "Yes, that's right." Describing his own position as
the operator of the cotton picker and Moreno's position in the
trailer, defendant testified:
He's kind of at my mercy [with respect to] what's
in front of him and what's above him because he can't
see anything in front of him because all he's seeing is
the back of the picker and the actual cotton inside the
picker because it's way above his head and there's just
no way to see around or above it.
The record contains numerous other references to the fact
that, once he was in the trailer, Moreno was practically engulfed
by stacks of cotton and was no longer in a position to see the
power line. Plaintiff's attorney asked defendant, "Could
[Moreno] have seen that power line?" Defendant answered, "No.
There's no way he could have seen it."
Finally on this point, defendant asserted in his reply to this lawsuit that Moreno "[r]emained in the trailer when it
became apparent that the cotton picker would make contact with
the power lines and the metal trailer in which he had positioned
himself." If it was, or should have been, apparent to Moreno
that the cotton picker would make contact with the power line and
that he should jump out of the trailer, it certainly should have
been apparent to defendant, who was operating the cotton picker,
and he should have stopped the cotton picker.
Element four: The record provides abundant evidence to
support an inference of negligence by defendant; in the trial of
this case, the jury found defendant to have been negligent.
Element five: No one disputes that Moreno was electrocuted
when defendant drove the cotton picker into the power line.
The evidence shows that defendant was operating the cotton
picker at the time of the accident. Having undertaken the
operation of that large piece of machinery, defendant had a duty
of "maintaining a lookout." Exum at 576, 158 S.E.2d at 853. The
evidence also is sufficient to support reasonable inferences of
all five elements required for an instruction on last clear
chance. Trantham at 613, 468 S.E.2d at 402. As in Exum,
[i]t was a question for the jury whether
these were or were not the facts of the case.
The issue of the last clear chance should
have been submitted to the jury with proper
instructions thereon. The failure of the
court to do so requires that the case be sent
back for a new trial.
Exum at 577, 158 S.E.2d at 853; see also Trantham at 612-13, 468
S.E.2d at 402.
New trial.
Judges JOHN and WALKER concur.
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