The defendant excepted to the submission of the third issue. Therefore, it becomes necessary to determine whether the evidence adduced in the trial below is sufficient to support a verdict in favor of the plaintiff on that issue. And in our opinion there is no evidence to support an affirmative answer thereto.
The doctrine of last clear chance or discovered peril is firmly established in our law; and is clearly and concisely stated by Barnhill, J., *370speaking for the Court in Ingram v. Smoky Mountain Stages, Inc., 225 N.C. 444, 35 S.E. 2d 337, as follows : “Tbe contributory negligence of tbe plaintiff does not preclude a recovery where it is made to appear that tbe defendant, by exercising reasonable care and prudence, might have avoided tbe injurious consequences to tbe plaintiff, notwithstanding plaintiff's negligence; that is, that by tbe exercise of reasonable care defendant might have discovered tbe perilous position of tbe party injured or killed and have avoided tbe injury, but failed to do so. Haynes v. R. R., 182 N.C. 679, 110 S.E. 56, and cases cited; Redmon v. R. R., 195 N.C. 764, 143 S.E. 829; Caudle v. R. R., 202 N.C. 404, 163 S.E. 122; Jenkins v. R. R., 196 N.C. 466, 146 S.E. 83; Taylor v. Reirson, 210 N.C. 185, 185 S.E. 627.”
Applying this doctrine to the evidence in the present case, it does not appear that the defendant was put on notice that plaintiff’s intestate was drunk, ill or otherwise incapacitated. Conceding plaintiff’s intestate was standing by bis car, as contended by the plaintiff, nothing else appearing, the defendant was entitled to assume that be would exercise ordinary care for bis own safety. This Court said in Reeves v. Staley, 220 N.C. 573, 18 S.E. 2d 246, speaking through Winborne, J.: “A motorist is not under a duty of anticipating negligence on the part of others, but in the absence of anything which gives or should give notice to the contrary, a person is entitled to assume, and to act on the assumption, that others will exercise ordinary care for their own safety,” citing numerous authorities. See also Hobbs v. Coach Co., 225 N.C. 323, 34 S.E. 2d 211; Tysinger v. Dairy Products, 225 N.C. 717, 36 S.E. 2d 246; Hill v. Lopez, 228 N.C. 433, 45 S.E. 2d 539; Cox v. Lee, 230 N.C. 155, 52 S.E. 2d 355; Bobbitt v. Haynes, 231 N.C. 373, 57 S.E. 2d 361.
Moreover we do not think the evidence before us places the plaintiff’s intestate in a place of peril until it was too late for the doctrine of last clear chance to be invoked. “The doctrine is clearly inapplicable where the peril and defendant’s discovery of the peril or his duty to discover it arose so shortly before the accident as to afford him no opportunity by the exercise of the greatest possible diligence, to avoid the injury. the doctrine contemplates a last ‘clear’ chance, not a last ‘possible’ chance, to avoid the accident; it must have been such a chance as would have enabled a reasonably prudent man in like position to have acted effectively.” 65 C.J.S., Negligence, Sec. 137 (2), p. 774, et seq. There is no evidence to show bow long the plaintiff’s intestate bad been out of bis car, or bow long be bad been on the highway prior to the discovery of bis presence thereon by the defendant. the application of the last clear chance doctrine is invoked only where there was a sufficient interval of time between the plaintiff’s negligence and bis injury during which the defendant, by *371the exercise of reasonable care could or should have discovered the perilous position of the plaintiff in time to avoid injuring him.
The original or primary negligence of a defendant, which would warrant answering the first issue in the affirmative, cannot be relied upon by the plaintiff to recover under the last clear chance doctrine. A recovery on the original negligence is barred in such cases by the plaintiff’s contributory negligence. The plaintiff’s right to recover, notwithstanding his own negligence, must arise out of a factual situation which gave the defendant an opportunity, through the exercise of reasonable care, to have avoided the injury to him, but failed to do so. Ingram v. Smoky Mountain Stages, Inc., supra; 38 Am. Jur., Negligence, Sec. 218, p. 903, et seq.
The defendant’s exception to the submission of the third issue is sustained.
The answer to the first two issues are determinative of the rights of the parties in this action. The contributory negligence of plaintiff’s intestate was conceded by the plaintiff in the trial below and the jury so instructed. Consequently the defendant is entitled to judgment.
The case is remanded for judgment in accord with this opinion.
The plaintiff’s motion to dismiss the appeal for failure to group and number the exceptions, as required by Eule 19 (3) of the Eules of Practice in the Supreme Court, is disallowed.
Since the disposition of the appeal necessitated the consideration of only one exception, and the exceptions are separately numbered, although not separately assigned as error, we have elected in our discretion to dispose of the ease on its merits without referring the transcript to the clerk or some attorney to state the exceptions as authorized by the rule.
Error and remanded.