Negligence – Last Clear Chance – Evidence Insufficient as a Matter of Law

Plaintiff, having fallen asleep at night at the side of a narrow dirt road, was run over by defendant’s automobile. He alleged that defendant was negligent in operating a vehicle at an excessive speed without proper lights. Defendant pleaded that plaintiff was contributorily negligent by being asleep in the road, and plaintiff then replied that defendant had the last clear chance to avoid the injury. On appeal from a judgment of involuntary nonsuit, held, affirmed, three justices dissenting. The plaintiff, by falling asleep at the side or in the middle of the road, was contributorily negligent as a matter of law, and the evidence was insufficient to allow a jury to conclude that the defendant had an opportunity to avoid the accident after he discovered or should have discovered the plaintiff’s perilous position. Barnes v. Horney, (N.C. 1958) 101 S.E. (2d) 315.