#### ROVY L. BENTON v. FAREST JOHNSON.

(Filed 17 March, 1948.)

1. Negligence §§ 9, 19e — Evidence held to disclose that injury was not foreseeable, and nonsuit was proper.

The evidence tended to show that plaintiff placed a stick of wood under the rear wheel of defendant’s backing truck in order to scotch the truck in compliance with request of the driver, that the wheel passed over the wood, and that as plaintiff placed his hand under the wood to retrieve it and replace it to the rear of the wheel, the wheel spun forward and engaged the wood which crushed plaintiff’s-hand. *Sold:*Defendant’s motion to nonsuit was properly allowed on the ground that the resulting injury, or any injury of similar nature, could not have been reasonably foreseen, since the driver could not have anticipated plaintiff would undertake the difficult and dangerous operation of retrieving the wood.

2. Negligence §§ *10, 19e*— Doctrine of last clear chance does not apply unless peril could have been discovered in time to avoid injury.

The evidence tended to show that defendant’s truck driver was backing the truck down a slight incline, that the driver was looking to the rear of the truck and that plaintiff, standing on the driver’s side of the truck, placed a stick of wood under the rear wheel to scotch the truck, that the wheel passed over the wood, and as plaintiff placed his hand under the wood to retrieve it and replace it to the roar of the wheel, the wheel spun forward and engaged the wood which crushed plaintiff’s hand. *Held:*Even conceding that the driver could or should have seen plaintiff’s peril the evidence fails to show that he could or should have done so in time to have avoided the injury.

3. Negligence §§ *11, 19c*— Evidence *held to*disclose contributory negligence in voluntarily selecting dangerous method of performing service.

Defendant’s driver, accompanied by a helper, was delivering a load of coal to plaintiff, and had to back the truck down a slight incline to unload the coal at the place designated by plaintiff. The evidence tended to show that the driver gave the order to scotch the truck, that his helper began putting stones to the rear of the wheel, that plaintiff then placed a stick of wood under the rear of the wheel on the other side, and that after the wheel had passed over the wood, plaintiff sought to retrieve it and replace it to the rear of the wheel wheia the wheel spun forward and engaged the wood which crushed plaintiff’s hand. *Reid:*Even conceding plaintiff was not a mere volunteer, he was not under duty to undertake the service or to pursue it in such dangerous manner, and plaintiff’s own contributory negligence was at least a proximate cause of his injury.

*626Plaintiff’s appeal from *Clement, J.,*November Term, 1941, Yadkin Superior Court.

*Avalon E. Hall for ¡plaintiff, appellant.*

*Allen & Henderson for defendant, appellee.*

Sea well, J.

Tbe plaintiff sued to recover for a personal injury, the loss of a finger with incident pain and suffering, and surgical and medical bills, and in support of his claim introduced evidence substantially as follows :

The truck in charge of the defendant’s employee and driver was in the act of delivering a load of coal to the plaintiff at the latter’s tobacco barn and plaintiff directed the driver where to put the coal — in a pen which plaintiff had made for that purpose out of firewood. The driver was at the time accompanied by a helper, one Junior Wilkins. It was necessary to back the truck down a slight incline to get the rear end in position to unload the coal.

At this time the driver was on the left side of the truck, looking toward the rear; the plaintiff was on that side near the rear of the truck. While the truck was being backed down grade the driver “hollered,” “Scotch the truck!” Immediately the helper began to gather some small rocks for that purpose. But the plaintiff, thinking that the rocks were too small, got a piece of firewood and threw it behind the rear wheels. Instead of stopping the truck the rear wheels rolled over the stick of wood. Plaintiff then sought to retrieve the stick of wood from in front of the wheels so as to replace it behind them. The wheels “spun” in a forward motion, engaging the stick of wood under which plaintiff had put his hand, and crushing one finger so that amputation was necessary.

The evidence is somewhat conflicting as to whether the wheels were “spinning” in a forward motion when plaintiff reached for the stick of wood or whether they began the forward motion at about the same time, or an instant later. The evidence does not exactly disclose whether the driver was looking at plaintiff just then; but the latter testifies that he was on the driver’s side of the ear and could have been seen; and that the driver had been looking in that direction. There is no evidence as to whom the request of “scotch the truck” was made.

There was further evidence on the question of damages.

At the conclusion of plaintiff’s evidence the defendant demurred and moved for judgment as of nonsuit. The motion was allowed. The plaintiff excepted, and from the ensuing judgment he appealed.

The propriety of the judgment of nonsuit is the only question presented on this appeal. We are unable to find anything in the evidence justifying a reversal.

*627Tbe defendant points out that a very similar factual situation was presented in *Gant v. Gant,*197 N. C., 164, 148 S. E., 34, an action brought by the wife against her husband. The defendant in that case was trying to move his automobile in the snow, and the wheels began to spin. The defendant asked his wife to get some long planks to put under tíre wheels. The car ran over the planks, the wheels spun, kicking a plank back against the plaintiff, injuring her. In sustaining the judgment of nonsuit in that case the Court, in an incisive opinion by *Justice Brogden,*observed:

> “Under the circumstances to require the defendant to foresee that the plank would Be kicked backward and injure his wife would practically stretch foresight into omniscience. The law does not require omniscience.”

*We*think that upon the whole evidence of the case the driver of the truck could scarcely be held to have foreseen the particular injury, or any injury of a similar nature, as a probable consequence of his act in attempting to move the truck forward.

It would be true that if the driver had actually seen the plaintiff in a dangerous situation and could have avoided the injury by the exercise of reasonable prudence, liability would have ensued regardless of the fact that there is no evidence or inference that the plaintiff had been "called upon to do this service, but was a mere volunteer. *Morris v. Transportation Co.,*208 N. C., 807, 182 S. E., 487; *Haynes v. R. R.,*182 N. C., 679, 110 S. E., 56; *Murphy v. R. R.,*211 N. C., 741, 191 S. E., 329; *Redmon v. R. R.,*195 N. C., 764, 143 S. E., 829; Anno., 119 A. L. R., 1041, 1055. The evidence, however, fails at this point: It does not show that the driver actually saw the plaintiff in his attempt to retrieve the stick of wood in his further attempt to scotch the truck, and the circumstances are not such as to put upon the driver of the truck the duty of anticipating that the plaintiff would undertake that difficult and dangerous operation, and of keeping a lookout for such an occurrence. And the evidence indicates that the events occurred in such rapid succession that the defendant had no opportunity to avoid the injury if he had seen it.

The forward motion of the wheel in the attempt to prevent the truck from rolling down the declivity occurred, for all practical purposes, just at the time the plaintiff undertook to remove the timber from in front of the wheels.

> “Discovery of the danger, or a duty to discover it, when offered as a predicate for a charge of negligence on the part of the defendant after the peril arose, involves something more than a mere dis*628covery or tbe duty to discover tbe injured person; it includes a duty in tbe circumstances to appreciate tbe danger in time to take tbe steps necessary to avert tbe accident.” 38 Am. Jur., Negligence, Sec. 219; *Kruger v. Omaha, & C. B. Street R. Co.,*80 Neb., 490.

At any rate, we tbink there is a clear inference tbat tbe plaintiff’s contributory negligence was in part, at least, tbe proximate cause of producing bis injury; *Austin v. Overton,*222 N. C., 89, 21 S. E. (2d), 887; *Godwin v. Atlantic Coast Line R. R.,*220 N. C., 281, 17 S. E. (2d), 137; and cases cited.

As we have observed, there is no evidence tbat tbe request to “scotch tbe truck” was made to plaintiff, but, supposing tbat it was, bis relation to tbe driver, or his superior, did not constrain him to undertake tbe service," or to pursue it in a dangerous manner.

Tbe judgment of tbe court below is

Affirmed.