last clear chance doctrine in Nebraska

1983A more detailed definition is given in Bush v. James, 152 Neb. 189, 195 , 40 N.W.2d 667, 672 (1950): “We said, in Carter v. Zdan, 151 Neb. 185 , 36 N.W.2d 781 : ‘In order to recover under the doctrine of last clear chance there must be sufficient evidence to sustain a finding that the party invoking the doctrine was by his own negligence immediately before the accident in a position of peril from which he could not escape by the exercise of ordinary care; that the party against whom it is asserted knew or ought to have known of the other’s peril; that the party against whom the doctrine is inv

1983A more detailed definition is given in Bush v. James, 152 Neb. 189, 195 , 40 N.W.2d 667, 672 (1950): “We said, in Carter v. Zdan, 151 Neb. 185 , 36 N.W.2d 781 : ‘In order to recover under the doctrine of last clear chance there must be sufficient evidence to sustain a finding that the party invoking the doctrine was by his own negligence immediately before the accident in a position of peril from which he could not escape by the exercise of ordinary care; that the party against whom it is asserted knew or ought to have known of the other’s peril; that the party against whom the doctrine is inv

1988Co., supra: “ ‘Before the doctrine of last clear chance can apply, the defendant must have had a chance to have avoided the collision, for the doctrine presupposes time for action.’ Diehm v. Dargaczewski, 135 Neb. 251 , 280 N.W. 898 ; Moses v. Mitchell, 139 Neb. 606 , 298 N.W. 338 .” “ ‘In the absence of proof of opportunity to avoid injuring such person after his danger was discovered, or ought to have been discovered, there is no reason for the application of the “last clear chance” doctrine.’ Johnston v. Delano, 100 Neb. 192 , 158 N.W. 1034 .” Nielsen v. Yellow Cab & Baggage Co., 130 Neb. 4

1988Co., supra: “ ‘Before the doctrine of last clear chance can apply, the defendant must have had a chance to have avoided the collision, for the doctrine presupposes time for action.’ Diehm v. Dargaczewski, 135 Neb. 251 , 280 N.W. 898 ; Moses v. Mitchell, 139 Neb. 606 , 298 N.W. 338 .” “ ‘In the absence of proof of opportunity to avoid injuring such person after his danger was discovered, or ought to have been discovered, there is no reason for the application of the “last clear chance” doctrine.’ Johnston v. Delano, 100 Neb. 192 , 158 N.W. 1034 .” Nielsen v. Yellow Cab & Baggage Co., 130 Neb. 4

1950However, as stated in Parsons v. Berry, 130 Neb. 264 , 264 N. W. 742 : “The doctrine of last clear chance applies in those cases where there is negligence of the defendant subsequent to the negligence of the plaintiff and the defendant’s negligence is the proximate cause of the in *155 jury.” In the record before us, we find no competent evidence from which it could be reasonably concluded that plaintiff was placed in a position of peril by his own negligence.

1950However, as stated in Parsons v. Berry, 130 Neb. 264 , 264 N. W. 742 : “The doctrine of last clear chance applies in those cases where there is negligence of the defendant subsequent to the negligence of the plaintiff and the defendant’s negligence is the proximate cause of the in *155 jury.” In the record before us, we find no competent evidence from which it could be reasonably concluded that plaintiff was placed in a position of peril by his own negligence.

1988Co., supra: “ ‘Before the doctrine of last clear chance can apply, the defendant must have had a chance to have avoided the collision, for the doctrine presupposes time for action.’ Diehm v. Dargaczewski, 135 Neb. 251 , 280 N.W. 898 ; Moses v. Mitchell, 139 Neb. 606 , 298 N.W. 338 .” “ ‘In the absence of proof of opportunity to avoid injuring such person after his danger was discovered, or ought to have been discovered, there is no reason for the application of the “last clear chance” doctrine.’ Johnston v. Delano, 100 Neb. 192 , 158 N.W. 1034 .” Nielsen v. Yellow Cab & Baggage Co., 130 Neb. 4

1988Co., supra: “ ‘Before the doctrine of last clear chance can apply, the defendant must have had a chance to have avoided the collision, for the doctrine presupposes time for action.’ Diehm v. Dargaczewski, 135 Neb. 251 , 280 N.W. 898 ; Moses v. Mitchell, 139 Neb. 606 , 298 N.W. 338 .” “ ‘In the absence of proof of opportunity to avoid injuring such person after his danger was discovered, or ought to have been discovered, there is no reason for the application of the “last clear chance” doctrine.’ Johnston v. Delano, 100 Neb. 192 , 158 N.W. 1034 .” Nielsen v. Yellow Cab & Baggage Co., 130 Neb. 4

1988Co., supra: “ ‘Before the doctrine of last clear chance can apply, the defendant must have had a chance to have avoided the collision, for the doctrine presupposes time for action.’ Diehm v. Dargaczewski, 135 Neb. 251 , 280 N.W. 898 ; Moses v. Mitchell, 139 Neb. 606 , 298 N.W. 338 .” “ ‘In the absence of proof of opportunity to avoid injuring such person after his danger was discovered, or ought to have been discovered, there is no reason for the application of the “last clear chance” doctrine.’ Johnston v. Delano, 100 Neb. 192 , 158 N.W. 1034 .” Nielsen v. Yellow Cab & Baggage Co., 130 Neb. 4

1988Co., supra: “ ‘Before the doctrine of last clear chance can apply, the defendant must have had a chance to have avoided the collision, for the doctrine presupposes time for action.’ Diehm v. Dargaczewski, 135 Neb. 251 , 280 N.W. 898 ; Moses v. Mitchell, 139 Neb. 606 , 298 N.W. 338 .” “ ‘In the absence of proof of opportunity to avoid injuring such person after his danger was discovered, or ought to have been discovered, there is no reason for the application of the “last clear chance” doctrine.’ Johnston v. Delano, 100 Neb. 192 , 158 N.W. 1034 .” Nielsen v. Yellow Cab & Baggage Co., 130 Neb. 4

1988In order to submit the doctrine to the jury there must be competent evidence to sustain each of the foregoing elements, Bush v. James, 152 Neb. 189 , 40 N.W.2d 667 (1950), and the issue must have been raised by the pleadings, Kubo v. Fish, 152 Neb. 74 , 40 N.W.2d 270 (1949).

1950Such a situation involves questions of comparative negligence and not those of the last clear chance doctrine.” For other cases holding to the same effect, see Kubo v. Fish, ante p. 74, 40 N. W. 2d 270 ; Whitehouse v. Thompson, supra; Ellis v. Union P. R.

1948It is also the rule that: “The doctrine of the last clear chance is not applicable where the negligence of the party seeking to invoke it is active and continuous as a contributing factor up to the time of injury, but its applicability is not avoided by the mere continuing existence of the consequences or peril resulting from prior but completed conduct.” Folken v. Petersen, 140 Neb. 800 , 1 N. W. 2d 916 .

1948It is also the rule that: “The doctrine of the last clear chance is not applicable where the negligence of the party seeking to invoke it is active and continuous as a contributing factor up to the time of injury, but its applicability is not avoided by the mere continuing existence of the consequences or peril resulting from prior but completed conduct.” Folken v. Petersen, 140 Neb. 800 , 1 N. W. 2d 916 .

1945On this proposition in Long v. Guilliatt, 137 Neb. 199 , 288 N. W. 689 , it was said: “It would be exacting too much of the law to permit plaintiff to recover, if, in a perilous situation negligently-created by himself, he had the last clear chance to escape and neglected to do so up to the very instant of the accident.” Still another restriction placed upon the rule by this court is the following: “The doctrine of the last clear chance does not apply where the negligence of the injured party is contemporanéous and active up to the very moment of an accident, and thus contributed to cause the

1945On this proposition in Long v. Guilliatt, 137 Neb. 199 , 288 N. W. 689 , it was said: “It would be exacting too much of the law to permit plaintiff to recover, if, in a perilous situation negligently-created by himself, he had the last clear chance to escape and neglected to do so up to the very instant of the accident.” Still another restriction placed upon the rule by this court is the following: “The doctrine of the last clear chance does not apply where the negligence of the injured party is contemporanéous and active up to the very moment of an accident, and thus contributed to cause the

1946Co., 130 Neb. 380 , 264 N. W. 879 , it was held: “To recover under the doctrine of the last clear chance, a plaintiff must have been in a position of peril which was known or, by the exercise of ordinary care, ought to have been known to defendant in time to avoid injury by the exercise of ordinary care.” And, “The fact that the person injured was in a place of danger and so situated that he could have been observed by the railroad engineer in time to have avoided the accident must be proved by a preponderance of the evidence.

1946Co., 130 Neb. 380 , 264 N. W. 879 , it was held: “To recover under the doctrine of the last clear chance, a plaintiff must have been in a position of peril which was known or, by the exercise of ordinary care, ought to have been known to defendant in time to avoid injury by the exercise of ordinary care.” And, “The fact that the person injured was in a place of danger and so situated that he could have been observed by the railroad engineer in time to have avoided the accident must be proved by a preponderance of the evidence.

1993In Laird v. Kostman, 229 Neb. 114, 425 N.W.2d 607 (1988), this court reaffirmed the requirements necessary to invoke the last clear chance doctrine: “In order to recover under the doctrine of the last clear chance in this state there must be sufficient evidence to sustain a finding (1) that the party invoking the doctrine was by his own negligence immediately before the accident in a position of peril from which he could not escape by the exercise of ordinary care, (2) that the party against whom it is asserted knew or ought to have known of the other’s peril, (3) that the party against whom t

1993In Laird v. Kostman, 229 Neb. 114, 425 N.W.2d 607 (1988), this court reaffirmed the requirements necessary to invoke the last clear chance doctrine: “In order to recover under the doctrine of the last clear chance in this state there must be sufficient evidence to sustain a finding (1) that the party invoking the doctrine was by his own negligence immediately before the accident in a position of peril from which he could not escape by the exercise of ordinary care, (2) that the party against whom it is asserted knew or ought to have known of the other’s peril, (3) that the party against whom t

1984It is established in our case law, and *96 stated in the last clear chance instruction, NJI 3.23, that one of the propositions which plaintiff must prove in order to be entitled to that doctrine of the law is “that the active negligence of the plaintiff had ceased and was not a contributing factor to the accident.” Both parties cite Maricle v. Spiegel, 213 Neb. 223 , 329 N.W.2d 80 (1983), in this connection.

1984It is established in our case law, and *96 stated in the last clear chance instruction, NJI 3.23, that one of the propositions which plaintiff must prove in order to be entitled to that doctrine of the law is “that the active negligence of the plaintiff had ceased and was not a contributing factor to the accident.” Both parties cite Maricle v. Spiegel, 213 Neb. 223 , 329 N.W.2d 80 (1983), in this connection.

1960The doctrine of the last clear chance is stated in Carnes v. DeKlotz, 137 Neb. 787 , 291 N. W. 490 , as follows: “Although a person may have negligently exposed himself or his property to an injury, nevertheless, if the defendant, after discovering his exposed situation, negligently injures him or is guilty of negligence in not discovering his dangerous position in time to avoid the injury, and injury results because thereof, he may still recover.” If appellant was guilty of negligence it continued up until the moment of impact.

1960The doctrine of the last clear chance is stated in Carnes v. DeKlotz, 137 Neb. 787 , 291 N. W. 490 , as follows: “Although a person may have negligently exposed himself or his property to an injury, nevertheless, if the defendant, after discovering his exposed situation, negligently injures him or is guilty of negligence in not discovering his dangerous position in time to avoid the injury, and injury results because thereof, he may still recover.” If appellant was guilty of negligence it continued up until the moment of impact.

1960See, also, Bush v. James, 152 Neb. 189 , 40 N. W. 2d 667 ; Roby v. Anker, 149 Neb. 734 , 32 N. W. 2d 491 .

1960See, also, Bush v. James, 152 Neb. 189 , 40 N. W. 2d 667 ; Roby v. Anker, 149 Neb. 734 , 32 N. W. 2d 491 .

1948Co., 91 Neb. 679 ; Zelenka v. Union Stock Yards Co., 82 Neb. 511 .” We further clarified the applicability of this doctrine in Folken v. Petersen, 140 Neb. 800 , 1 N. W. 2d 916 , as follows: “The doctrine of the last clear chance is not applicable where the negligence of the party seeking to invoke it is active and continuous as a contributing factor up to the time of injury, but its applicability is not avoided by the mere continuing existence of the consequences or peril resulting from prior but completed conduct.” The opinion goes on to approve the following from Parsons v. Berry, 130 Neb.

1934The appellant cites Zelenka v. Union Stock Yards Co., 82 Neb. 511 , to support his contention that the trial court should have given an instruction on the doctrine of last clear chance.

1960Such a *531 situation involves questions of comparative negligence and not those of the last clear chance doctrine.” Trumbley v. Moore, 151 Neb. 780 , 39 N. W. 2d 613 .

1960Such a *531 situation involves questions of comparative negligence and not those of the last clear chance doctrine.” Trumbley v. Moore, 151 Neb. 780 , 39 N. W. 2d 613 .

1957The following authorities respectively so dispose of plaintiff’s contention: Roby v. Auker, 149 Neb. 734 , 32 N. W. 2d 491 ; Carter v. Zdan, 151 Neb. 185 , 36 N. W. 2d 781 ; Wolfinger v. Shaw, 138 Neb. 229 , 292 N. W. 731 ; Peake v Omaha Cold Storage Co., 158 Neb. 676 , 64 N. W. 2d 470 .

1957The following authorities respectively so dispose of plaintiff’s contention: Roby v. Auker, 149 Neb. 734 , 32 N. W. 2d 491 ; Carter v. Zdan, 151 Neb. 185 , 36 N. W. 2d 781 ; Wolfinger v. Shaw, 138 Neb. 229 , 292 N. W. 731 ; Peake v Omaha Cold Storage Co., 158 Neb. 676 , 64 N. W. 2d 470 .

1957The following authorities respectively so dispose of plaintiff’s contention: Roby v. Auker, 149 Neb. 734 , 32 N. W. 2d 491 ; Carter v. Zdan, 151 Neb. 185 , 36 N. W. 2d 781 ; Wolfinger v. Shaw, 138 Neb. 229 , 292 N. W. 731 ; Peake v Omaha Cold Storage Co., 158 Neb. 676 , 64 N. W. 2d 470 .

1957The following authorities respectively so dispose of plaintiff’s contention: Roby v. Auker, 149 Neb. 734 , 32 N. W. 2d 491 ; Carter v. Zdan, 151 Neb. 185 , 36 N. W. 2d 781 ; Wolfinger v. Shaw, 138 Neb. 229 , 292 N. W. 731 ; Peake v Omaha Cold Storage Co., 158 Neb. 676 , 64 N. W. 2d 470 .

1948Plaintiff’s answer thereto, together with the evidence adduced, not only by defendant but by plaintiff as well, of which defendant was entitled to have- the benefit, made that doctrine an issue for the jury. • The applicable rule is that the trial court must submit to and instruct the jury upon all material issues raised by the pleadings and supported by the evidence, Franks v. Jirdon, 146 Neb. 585 , 20 N. W. 2d 597 , whether requested to do so or not, Tenborg v. Dillie, 132 Neb. 203 , 271 N. W. 689 .

1948Plaintiff’s answer thereto, together with the evidence adduced, not only by defendant but by plaintiff as well, of which defendant was entitled to have- the benefit, made that doctrine an issue for the jury. • The applicable rule is that the trial court must submit to and instruct the jury upon all material issues raised by the pleadings and supported by the evidence, Franks v. Jirdon, 146 Neb. 585 , 20 N. W. 2d 597 , whether requested to do so or not, Tenborg v. Dillie, 132 Neb. 203 , 271 N. W. 689 .

1948Plaintiff’s answer thereto, together with the evidence adduced, not only by defendant but by plaintiff as well, of which defendant was entitled to have- the benefit, made that doctrine an issue for the jury. • The applicable rule is that the trial court must submit to and instruct the jury upon all material issues raised by the pleadings and supported by the evidence, Franks v. Jirdon, 146 Neb. 585 , 20 N. W. 2d 597 , whether requested to do so or not, Tenborg v. Dillie, 132 Neb. 203 , 271 N. W. 689 .

1948Plaintiff’s answer thereto, together with the evidence adduced, not only by defendant but by plaintiff as well, of which defendant was entitled to have- the benefit, made that doctrine an issue for the jury. • The applicable rule is that the trial court must submit to and instruct the jury upon all material issues raised by the pleadings and supported by the evidence, Franks v. Jirdon, 146 Neb. 585 , 20 N. W. 2d 597 , whether requested to do so or not, Tenborg v. Dillie, 132 Neb. 203 , 271 N. W. 689 .

1948Co., 146 Neb. 676 , 21 N. W. 2d 431 , it was held: “To recover under the doctrine of the last clear chance, a plaintiff must have been in a position of peril which was known or, by the exercise of ordinary care, ought to have been known to defendant in time to avoid injury by the exercise of ordinary care.” It has also been said that: “Before the doctrine of last clear chance can apply, the defendant must have had a chance to have avoided the collision, for the doctrine presupposes time for action.” Diehm v. Darg aczewski, 135 Neb. 251 , 280 N. W. 898 ; Moses v. Mitchell, 139 Neb. 606 , 298 N.

1948Co., 146 Neb. 676 , 21 N. W. 2d 431 , it was held: “To recover under the doctrine of the last clear chance, a plaintiff must have been in a position of peril which was known or, by the exercise of ordinary care, ought to have been known to defendant in time to avoid injury by the exercise of ordinary care.” It has also been said that: “Before the doctrine of last clear chance can apply, the defendant must have had a chance to have avoided the collision, for the doctrine presupposes time for action.” Diehm v. Darg aczewski, 135 Neb. 251 , 280 N. W. 898 ; Moses v. Mitchell, 139 Neb. 606 , 298 N.

1948Co., 91 Neb. 679 ; Zelenka v. Union Stock Yards Co., 82 Neb. 511 .” We further clarified the applicability of this doctrine in Folken v. Petersen, 140 Neb. 800 , 1 N. W. 2d 916 , as follows: “The doctrine of the last clear chance is not applicable where the negligence of the party seeking to invoke it is active and continuous as a contributing factor up to the time of injury, but its applicability is not avoided by the mere continuing existence of the consequences or peril resulting from prior but completed conduct.” The opinion goes on to approve the following from Parsons v. Berry, 130 Neb.

1943We are mindful of the statement in Johnston v. Delano, 100 Neb. 192 , 158 N. W. 1034 , that the doctrine of the last clear chance “is based upon the idea that, when any person is in a place of danger, whether negligent or not, one who knows, or who might know, and under the circumstance ought to know, of the danger, must use every precaution to avoid injuring him.” (Emphasis supplied.) This language was cited with approval in Barrett v. Alamito Dairy Co., 105 Neb. 658 , 181 N. W. 550 , where, under the facts, we held that the doctrine was not applicable.

1943We are mindful of the statement in Johnston v. Delano, 100 Neb. 192 , 158 N. W. 1034 , that the doctrine of the last clear chance “is based upon the idea that, when any person is in a place of danger, whether negligent or not, one who knows, or who might know, and under the circumstance ought to know, of the danger, must use every precaution to avoid injuring him.” (Emphasis supplied.) This language was cited with approval in Barrett v. Alamito Dairy Co., 105 Neb. 658 , 181 N. W. 550 , where, under the facts, we held that the doctrine was not applicable.

1941Johnson v. City of Omaha, 108 Neb. 481 , 188 N. W. 122 .” “Before the doctrine of last clear chance can apply, the defendant must have had a chance to have avoided the collision, for the doctrine presupposes time for action.” Diehm v. Dargaczewski, 135 Neb. 251 , 280 N. W. 898 .

1941Johnson v. City of Omaha, 108 Neb. 481 , 188 N. W. 122 .” “Before the doctrine of last clear chance can apply, the defendant must have had a chance to have avoided the collision, for the doctrine presupposes time for action.” Diehm v. Dargaczewski, 135 Neb. 251 , 280 N. W. 898 .

1941No reasonable mind could arrive at the conclusion that the driver of the fire truck, observing the said approach of said cars, could anticipate or foresee that one car approaching would or might cast the other car into his course so near him that he could not stop and avoid a collision, nor, in fact, that he could foresee or anticipate that it would be cast into his course at any point whatever, nor that he could anticipate or foresee that there would be a collision between the other two cars at the street intersection.” In Woodworth v. Johnston, 131 Neb. 113 , 267 N. W. 243 , the evidence con

1941No reasonable mind could arrive at the conclusion that the driver of the fire truck, observing the said approach of said cars, could anticipate or foresee that one car approaching would or might cast the other car into his course so near him that he could not stop and avoid a collision, nor, in fact, that he could foresee or anticipate that it would be cast into his course at any point whatever, nor that he could anticipate or foresee that there would be a collision between the other two cars at the street intersection.” In Woodworth v. Johnston, 131 Neb. 113 , 267 N. W. 243 , the evidence con