Trull v. Austin, 252 N.C. 367 (1960)

April 13, 1960 · Supreme Court of North Carolina

252 N.C. 367

BLANCHE P. TRULL, Administratrix of WALTER ALFRED TRULL, Deceased, v. RAEFORD LEE AUSTIN.

(Filed 13 April, 1960.)

Appeal by plaintiff from Sharp, S. J., January 1960 Special Civil Term, of Union.

This is an action to recover damages for the alleged wrongful death of plaintiff’s intestate, Walter Alfred Trull.

About 11:15 P. M. on 22 May 1959 the deceased, while lying upon a paved rural road in Union County, was struck by a motor vehicle. He was injured and death immediately ensued. He had been drinking whiskey. Defendant drove a Ford pickup over his body.

Defendant was the only eyewitness. He testified that Trull was in his lane of travel, he first saw the body when about 200 feet away, it “appeared to be a bag or a piece of paper or maybe a dark spot in the road,” it did not move, and he recognized it as a person when only 20 to 25 feet away and too close for him to stop or avoid striking itu

Verdict for defendant.

From judgment in accordance with the verdict plaintiff appealed and assigned errors.

Coble Funderbunk for plaintiff, appellant.

Smith ■& Griffin for defendant, appellee.

PER Cueiam.

Appropriate issues, applying the “last clear chance” doctrine, were submitted to the jury. Wade v. Sausage Co., 239 N.C. 524, 80 S.E. 2d 150. The jury answered only the first issue, finding that deceased was not injured or killed by the negligence of defendant. The trial judge properly denied plaintiff’s motion for peremptory instructions on the “negligence” and “contributory negligence” issues. The issues were for jury decision. The exceptions to the charge are not well taken. The court’s instructions adequately presented the applicable legal principles and are free of prejudicial error. There was no request for special instructions. The exception to exclusion of testimony is without merit.

No error.