82 S.E.2d 215 | N.C. | 1954
COLLAS
v.
REGAN.
Supreme Court of North Carolina.
*216 John T. Manning, Chapel Hill, for plaintiff.
Bonner D. Sawyer, Hillsboro, for defendant.
ERVIN, Justice.
Counsel for the plaintiff concedes with his customary candor that his client's pleadings do not invoke the last clear chance or discovered peril doctrine, and that in consequence his client is not entitled to prevail on this appeal unless we overrule the decisions holding 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. North Carolina R. Co., 223 N.C. 244, 25 S.E. 2d 833; Hudson v. Norfolk Southern R. Co., 190 N.C. 116, 129 S.E. 146. This we cannot do. These decisions are simply practical applications of the basic rule that a plaintiff can recover only on the case made by his pleadings. The plaintiff's legal plight would be no better, however, had his pleadings invoked the doctrine under discussion. This is true because there is no evidence indicating that the infant defendant might have averted the injury by using proper care after his discovery of the plaintiff's peril. Wade v. Jones Sausage Co., 239 N.C. 524, 80 S.E.2d 150.
No error.