266 N.C. 778
N.C.
1966
Pless, J.

In her brief the plaintiff concedes that in order to prevail she must do so on the doctrine of last clear chance. In Wade v. Sausage Co., 239 N.C. 524, 80 S.E. 2d 150, the court sets forth the four elements of the last clear chance doctrine which must be established before a pedestrian may recover against the driver of a motor vehicle. “Where an injured pedestrian who has been guilty of contributory negligence invokes the last clear chance or discovered peril doctrine against the driver of a motor vehicle which struck and injured him, he must establish these four elements: (1) That the pedestrian negligently placed himself in a position of peril from which he could not escape by the exercise of reasonable care; (2) that the motorist knew, or by the exercise of reasonable care could have discovered, the pedestrian’s perilous position and his incapacity to escape from it before the endangered pedestrian suffered injury at his hands; (3) that the motorist had the time and means to avoid injury to the endangered pedestrian by the exercise of reasonable care after he discovered, or should have discovered, the pedestrian’s perilous position and his incapacity to escape from it; and (4) that the motorist negligently failed to use the available time and means to avoid injury to the endangered pedestrian, and for that reason struck and injured him.” (Citing numerous cases).

It is debatable that the evidence would permit the submission of the case to the jury upon the first two elements but, in our opinion, the plaintiff cannot prevail upon the third requirement “that the motorist had the time and means to avoid injury to the endangered pedestrian by the exercise of reasonable care after he discovered, or should have discovered, the pedestrian’s perilous position and his incapacity to escape from it.” The plaintiff’s evidence showed that the defendant had met and passed an oncoming car about the crest of a hill some 200 feet from the scene of the accident and that in passing he had dimmed the lights of his car. The accident occurred within a few seconds thereafter and before the defendant had come back to bright lights. He was driving at a speed of some 30 to 35 miles per hour and his lights and brakes were in good working order. The plaintiff’s evidence further showed that the pavement at this point was black-top asphalt, that the deceased *781 was dressed in dark clothing and that he was not seen by the defendant nor his passengers until he was approximately 130 feet from the decedent. At a speed of 30 miles per hour, it would take less than three seconds to traverse this distance and, allowing for reaction time to apply his brakes, we cannot hold that the defendant was negligent in being unable to stop before striking the deceased.

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. Aydlett v. Keim, 232 N.C. 367, 61 S.E. 2d 109.

“A driver of an automobile may anticipate that other travelers will be using the highway and he should be on the lookout for them. However, it would seem to be too much to require him to anticipate the highway would be used as sleeping quarters.” Barnes v. Horney, 247 N.C. 495, 101 S.E. 2d 315. We are of the opinion that the dark clothes of the deceased blending into the background of the black pavement, made it unreasonable to expect the defendant, even though driving at a slow rate of speed, to be able to see the deceased in time to avoid striking him.

A jury could have found that the deceased was not negligent and that his position on the highway was due to an epileptic seizure. In this event, the doctrine of last clear chance would not be applicable. However, for the reasons stated in regard to it, we do not feel that the evidence would permit a finding of actionable' negligence on the part of the defendant.

We have considered the plaintiff’s evidence of an experiment showing that the deceased could have been seen for 200 feet with bright lights and 130 feet if they were dimmed. Even if the conditions approximated those of the night in question, which is doubtful, we are still of the opinion that actionable negligence of the defendant has not been shown.

The cause of death of the deceased is left to conjecture. No autopsy was held and the deceased had only one scar or blow on his forehead, although apparently a very serious one. Whether it was inflicted by the car the defendant had just passed or by the defendant’s car, the evidence does not disclose. The evidence does not reveal whether he died from a blow, acute "alcoholism or epileptic seizure. “No negligence is presumed from the mere fact that plaintiff’s intestate was run over, and killed by the defendant.” Shinault v. Creed, 244 N.C. 217, 92 S.E. 2d 787.

*782 We are of the opinion that the defendant’s motion to dismiss the action as in case of nonsuit was well taken.

Affirmed.

Moore, J., not sitting.