Collas v. Regan ex rel. Regan, 240 N.C. 472 (1954)

June 4, 1954 · Supreme Court of North Carolina

240 N.C. 472

NICK COLLAS v. TOMMY J. REGAN (Minor), by His Guardian Ad Litem, C. E. REGAN.

(Filed 4 June, 1954.)

1. Negligence §§ 10, 16—

The last clear chance or discovered peril doctrine must be pleaded by a plaintiff in order to be available as a basis for recovery.

3. Pleadings § 34—

A plaintiff can recover only on the ease made by his pleadings.

3. Negligence § 10—

The doctrine of last clear chance does not apply when there is no evidence indicating that defendant might have avoided the injury by using proper care after his discovery of plaintiff’s peril.

Appeal by plaintiff from Sharp, Special Judge, at February Special Term, 1954, of ObaNGe.

An automobile operated by tbe infant defendant Tommy J. Regan struck and injured tbe plaintiff Nick Collas while be was walking across a street in Chapel Hill. The plaintiff sued tbe infant defendant for resultant damages. These issues arose upon tbe pleadings and were submitted to tbe jury: (1) "Was tbe plaintiff injured by tbe negligence of tbe defendant, as alleged in tbe complaint? (2) Did tbe plaintiff, by bis own negligence, contribute to bis injury, as alleged in tbe answer? (3) What amount of damages, if any, is tbe plaintiff entitled to recover of tbe defendant? Tbe jury answered tbe first issue “yes” and tbe second issue “yes,” and left tbe third issue unanswered. Tbe presiding judge entered judgment for defendant, and tbe plaintiff appealed, assigning errors.

Jojm T. Manning for plaintiff.

Bonner D. Sawyer for defendant.

Eevikt, J.

Counsel for tbe plaintiff concedes with bis customary candor that bis client’s pleadings do not invoke tbe last clear chance or discovered peril doctrine, and that in consequence bis client is not entitled to prevail on this appeal unless we overrule tbe decisions bolding that the last clear chance or discovered peril doctrine must be pleaded by a plaintiff in order to be available as a basis for recovery. Bailey v. R. R., 223 N.C. 244, 25 S.E. 2d 833; Hudson v. R. R., 190 N.C. 116, 129 S.E. 146. This we cannot do. These decisions are simply practical applications of tbe basic rule that a plaintiff can recover only on tbe case made by bis pleadings. The plaintiff’s legal plight would be no better, however, bad bis pleadings invoked tbe doctrine under discussion. This is true because there is no evidence indicating that tbe infant defendant might have averted tbe injury by using proper care after bis discovery of tbe plaintiff’s peril. Wade v. Sausage Co., 239 N.C. 524, 80 S.E. 2d 150.

No error.