last clear chance doctrine in Kansas

1971Co., 137 Kan. 508 , 21 P. 2d 322 , as follows: “The doctrine of the last clear chance . . . may be said to be made up of the following elements: (1) Plaintiff, by his negligence, placed himself in a position of danger; (2) that his negligence had ceased; (3) that defendant seeing plaintiff in a position of danger, or by the exercise of due care should have seen him in such position, by exercising due care on his part had a clear chance to avoid injuring plaintiff; (4) that defendant failed to exercise such due care, and (5) as a result of such failure plaintiff was injured.” (p. 512.) The requ

1971Co., 137 Kan. 508 , 21 P. 2d 322 , as follows: “The doctrine of the last clear chance . . . may be said to be made up of the following elements: (1) Plaintiff, by his negligence, placed himself in a position of danger; (2) that his negligence had ceased; (3) that defendant seeing plaintiff in a position of danger, or by the exercise of due care should have seen him in such position, by exercising due care on his part had a clear chance to avoid injuring plaintiff; (4) that defendant failed to exercise such due care, and (5) as a result of such failure plaintiff was injured.” (p. 512.) The requ

1973Co., 205 Kan. 592 , 470 P. 2d 748 ; Wegley v. Funk, 201 Kan. 719 , 443 P. 2d 323 .) It is stated in Letcher v. Derricott, 191 Kan. 596, 603 , 383 P. 2d 533 , that the last clear chance doctrine presupposes contributory negligence on the part of the person injured.

1973Co., 205 Kan. 592 , 470 P. 2d 748 ; Wegley v. Funk, 201 Kan. 719 , 443 P. 2d 323 .) It is stated in Letcher v. Derricott, 191 Kan. 596, 603 , 383 P. 2d 533 , that the last clear chance doctrine presupposes contributory negligence on the part of the person injured.

1970In Gilbert v. Railway Co., 91 Kan. 711 , 139 Pac. 380 , it was said: “ ‘The plaintiff was engaged in an active disregard of his own safety up to the last moment when he might have been saved, and consequently has no standing to invoke the doctrine of last clear chance.’ (p. 718.) “Moreover, if the trial court had assumed that plaintiff’s contributory negligence had ceased, which the trial court was unable to do in view of plaintiff’s own testimony, the fact still remains that plaintiff’s evidence did not bring him under the doctrine of last clear chance.

1970In Gilbert v. Railway Co., 91 Kan. 711 , 139 Pac. 380 , it was said: “ ‘The plaintiff was engaged in an active disregard of his own safety up to the last moment when he might have been saved, and consequently has no standing to invoke the doctrine of last clear chance.’ (p. 718.) “Moreover, if the trial court had assumed that plaintiff’s contributory negligence had ceased, which the trial court was unable to do in view of plaintiff’s own testimony, the fact still remains that plaintiff’s evidence did not bring him under the doctrine of last clear chance.

1953The rules just mentioned were, in substance, followed in Gibson v. Bodley, 156 Kan. 338 , 133 P. 2d 112 , (cited but not commented on in the Frogge case, supra) it being held: “Plaintiff may plead in his petition all the grounds of negligence known to him, including the negligent failure of a defendant to avoid injury under the doctrine of last clear chance, but in order to rely upon the latter theory of negligence the essential elements of the doctrine must be pleaded in order to make it available, when the petition is properly and timely challenged by motions and demurrer.” (Syl. ¶ 3.) *102

1953The rules just mentioned were, in substance, followed in Gibson v. Bodley, 156 Kan. 338 , 133 P. 2d 112 , (cited but not commented on in the Frogge case, supra) it being held: “Plaintiff may plead in his petition all the grounds of negligence known to him, including the negligent failure of a defendant to avoid injury under the doctrine of last clear chance, but in order to rely upon the latter theory of negligence the essential elements of the doctrine must be pleaded in order to make it available, when the petition is properly and timely challenged by motions and demurrer.” (Syl. ¶ 3.) *102

1973Co., 205 Kan. 592 , 470 P. 2d 748 ; Wegley v. Funk, 201 Kan. 719 , 443 P. 2d 323 .) It is stated in Letcher v. Derricott, 191 Kan. 596, 603 , 383 P. 2d 533 , that the last clear chance doctrine presupposes contributory negligence on the part of the person injured.

1973Co., 205 Kan. 592 , 470 P. 2d 748 ; Wegley v. Funk, 201 Kan. 719 , 443 P. 2d 323 .) It is stated in Letcher v. Derricott, 191 Kan. 596, 603 , 383 P. 2d 533 , that the last clear chance doctrine presupposes contributory negligence on the part of the person injured.

1968The most recent treatment of the subject was made in Letcher v. Derricott, 191 Kan. 596 , 383 P. 2d 533 , in which the elements as stated in Gibbs v. Mikesell, 183 Kan. 123 , 325 P. 2d 359 , were quoted as follows: “‘“The essential elements under the doctrine of last clear chance are: (1) The plaintiff by his own negligence placed himself in a position of danger; (2) that the plaintiff’s negligence had ceased; (3) that the defendant seeing the plaintiff in a position of danger, or by the exercise of due care should have seen the plaintiff in such position, by exercising due care on his part ha

1968The most recent treatment of the subject was made in Letcher v. Derricott, 191 Kan. 596 , 383 P. 2d 533 , in which the elements as stated in Gibbs v. Mikesell, 183 Kan. 123 , 325 P. 2d 359 , were quoted as follows: “‘“The essential elements under the doctrine of last clear chance are: (1) The plaintiff by his own negligence placed himself in a position of danger; (2) that the plaintiff’s negligence had ceased; (3) that the defendant seeing the plaintiff in a position of danger, or by the exercise of due care should have seen the plaintiff in such position, by exercising due care on his part ha

1936Co., 123 Kan. 187 , syl. ¶ 4, 253 Pac. 1096 .) “In an action for damages for injuries received at a railroad crossing on account of the negligence of the defendant railway company, where it is stated in the petition that the plaintiff’s automobile became stalled upon the crossing, and before the plaintiff could get out of the automobile or away from the crossing the collision occurred, it is held that it was sufficient to inform the-defendant of the intention of the plaintiff to make a claim under the last-clear-chance doctrine, although the pleadings along that line were incomplete (Juznik v.

1936Co., 123 Kan. 187 , syl. ¶ 4, 253 Pac. 1096 .) “In an action for damages for injuries received at a railroad crossing on account of the negligence of the defendant railway company, where it is stated in the petition that the plaintiff’s automobile became stalled upon the crossing, and before the plaintiff could get out of the automobile or away from the crossing the collision occurred, it is held that it was sufficient to inform the-defendant of the intention of the plaintiff to make a claim under the last-clear-chance doctrine, although the pleadings along that line were incomplete (Juznik v.

1936Co., 122 Kan. 305 , 252 Pac. 472 , it was held: “In an action for damages for personal injuries sustained by plaintiff in a railway-crossing accident, where the cause was tried on the theory that plain tiff’s negligence would bar a recovery against the defendant railway company unless such recovery could be predicated on the doctrine of the last clear chance, the plaintiff’s evidence examined, and held to show that his own negligence did not cease at any time prior to the collision of defendant’s passenger train and plaintiff’s automobile and consequently a judgment fixing exclusive responsibi

1936Co., 122 Kan. 305 , 252 Pac. 472 , it was held: “In an action for damages for personal injuries sustained by plaintiff in a railway-crossing accident, where the cause was tried on the theory that plain tiff’s negligence would bar a recovery against the defendant railway company unless such recovery could be predicated on the doctrine of the last clear chance, the plaintiff’s evidence examined, and held to show that his own negligence did not cease at any time prior to the collision of defendant’s passenger train and plaintiff’s automobile and consequently a judgment fixing exclusive responsibi

1933The syllabus reads: “The trial court correctly charged that after plaintiff’s truck was negligently driven between the street-car tracks and the plaintiff was in a position of peril and his own negligence had ceased, the defendant would be liable if it saw or by the exercise of ordinary care would have seen him in such position in time to avoid injuring him, and failed to do so.” In the opinion the court stated the following theorem, which it proceeded to demonstrate by reference to authority: “The rule is so firmly fixed in this state and so thoroughly supported by the great weight of authori

1925(Railway Co. v. Arnold, 67 Kan. 260 , 72 Pac. 857 ; Dyerson v. Railroad Co., 74 Kan. 528 , 87 Pac. 680 ; Railway Co. v. Clinkenbeard, 77 Kan. 481 , 94 Pac. 1001 ; Railroad Co. v. Liebhart, 80 Kan. 91 , 101 Pac. 457 ; McMahon v. Railway Co., 96 Kan. 271, 272 , 150 Pac. 566 ; Atherton v. Railway Co., 107 Kan. 6 , 190 Pac. 430 ; Muir v. City Railways Co., 116 Kan. 551 , 227 Pac. 536 .) The last-clear-chance doctrine is a rule of law, but the facts to which it applies must be found by the jury.

1933The syllabus reads: “The trial court correctly charged that after plaintiff’s truck was negligently driven between the street-car tracks and the plaintiff was in a position of peril and his own negligence had ceased, the defendant would be liable if it saw or by the exercise of ordinary care would have seen him in such position in time to avoid injuring him, and failed to do so.” In the opinion the court stated the following theorem, which it proceeded to demonstrate by reference to authority: “The rule is so firmly fixed in this state and so thoroughly supported by the great weight of authori

1925(Railway Co. v. Arnold, 67 Kan. 260 , 72 Pac. 857 ; Dyerson v. Railroad Co., 74 Kan. 528 , 87 Pac. 680 ; Railway Co. v. Clinkenbeard, 77 Kan. 481 , 94 Pac. 1001 ; Railroad Co. v. Liebhart, 80 Kan. 91 , 101 Pac. 457 ; McMahon v. Railway Co., 96 Kan. 271, 272 , 150 Pac. 566 ; Atherton v. Railway Co., 107 Kan. 6 , 190 Pac. 430 ; Muir v. City Railways Co., 116 Kan. 551 , 227 Pac. 536 .) The last-clear-chance doctrine is a rule of law, but the facts to which it applies must be found by the jury.

1932Co., 119 Kan. 365, 367 , 239 Pac. 754 : “The case turns on that doctrine. [Last clear chance.] It is a rule of law which makes the defendant liable where the plaintiff through his own negligence has placed himself in a place of danger from which he cannot extricate himself and where the defendant saw or should have seen the situation of the plaintiff in time to avoid injuring him.” (See cases there cited.) The last-clear-chance doctrine, being a rule of law, the pleadings and facts found by the jury must come within the rule to make it applicable.

1932Co., 119 Kan. 365, 367 , 239 Pac. 754 : “The case turns on that doctrine. [Last clear chance.] It is a rule of law which makes the defendant liable where the plaintiff through his own negligence has placed himself in a place of danger from which he cannot extricate himself and where the defendant saw or should have seen the situation of the plaintiff in time to avoid injuring him.” (See cases there cited.) The last-clear-chance doctrine, being a rule of law, the pleadings and facts found by the jury must come within the rule to make it applicable.

1976(Prior v. Best Cabs, Inc., 199 Kan. 77 , 427 P. 2d 481 .) If there was evidence in the present case from which a jury could reasonably find the doctrine of last clear chance applied, it was error for the trial court to refuse to instruct on that theory. *677 The essential elements of the doctrine of last clear chance have been stated by this court on numerous, occasions.

1976(Prior v. Best Cabs, Inc., 199 Kan. 77 , 427 P. 2d 481 .) If there was evidence in the present case from which a jury could reasonably find the doctrine of last clear chance applied, it was error for the trial court to refuse to instruct on that theory. *677 The essential elements of the doctrine of last clear chance have been stated by this court on numerous, occasions.

1973In Gardner v. Pereboom, 197 Kan. 188 , 416 P. 2d 67 , we held that if concurrent acts of negligence of joint tort-feasors contribute to bringing about injury to a third party, the degree of culpability is immaterial.

1973In Gardner v. Pereboom, 197 Kan. 188 , 416 P. 2d 67 , we held that if concurrent acts of negligence of joint tort-feasors contribute to bringing about injury to a third party, the degree of culpability is immaterial.

1973Co., 205 Kan. 592 , 470 P. 2d 748 ; Wegley v. Funk, 201 Kan. 719 , 443 P. 2d 323 .) It is stated in Letcher v. Derricott, 191 Kan. 596, 603 , 383 P. 2d 533 , that the last clear chance doctrine presupposes contributory negligence on the part of the person injured.

1973Co., 205 Kan. 592 , 470 P. 2d 748 ; Wegley v. Funk, 201 Kan. 719 , 443 P. 2d 323 .) It is stated in Letcher v. Derricott, 191 Kan. 596, 603 , 383 P. 2d 533 , that the last clear chance doctrine presupposes contributory negligence on the part of the person injured.

1970S. A. 60-249 [a]; Bott v. Wendler, 203 Kan. 212 , 453 P. 2d 100 .) Ry resting their right of recovery on the *596 doctrine of last clear chance, plaintiffs concede that Mrs. Engel was negligent in operating her automobile.

1970S. A. 60-249 [a]; Bott v. Wendler, 203 Kan. 212 , 453 P. 2d 100 .) Ry resting their right of recovery on the *596 doctrine of last clear chance, plaintiffs concede that Mrs. Engel was negligent in operating her automobile.

1966Co., 147 Kan. 192 , 75 P. 2d 280 ; Bazzell v. Atchison, T. & S. F. Rly.

1966Co., 147 Kan. 192 , 75 P. 2d 280 ; Bazzell v. Atchison, T. & S. F. Rly.

1958(Gibson v. Bodley, 156 Kan. 338 , 133 P. 2d 112 ; Frogge v. Kansas City Public Service Co., 159 Kan. 687 , 157 P. 2d 537 ; Kloepfer v. Chicago, Rock Island & Pacific Rld.

1958(Gibson v. Bodley, 156 Kan. 338 , 133 P. 2d 112 ; Frogge v. Kansas City Public Service Co., 159 Kan. 687 , 157 P. 2d 537 ; Kloepfer v. Chicago, Rock Island & Pacific Rld.

1953Although spelled out at length in its brief, the appellee, in support of the trial court’s ruling, directs our attention to the early case of Grentner v. Fehrenschield, 64 Kan. 764 , 68 Pac. 619 , and to many of our later decisions where its ruling is followed, in which it was held that a plaintiff must frame his petition upon a definite theory and upon that theory state a good cause of action, and if there is not a single and definite theory or such a confusion of theories the court cannot determine from the general scope of the petition upon which of several theories a recovery is sought it

1953Although spelled out at length in its brief, the appellee, in support of the trial court’s ruling, directs our attention to the early case of Grentner v. Fehrenschield, 64 Kan. 764 , 68 Pac. 619 , and to many of our later decisions where its ruling is followed, in which it was held that a plaintiff must frame his petition upon a definite theory and upon that theory state a good cause of action, and if there is not a single and definite theory or such a confusion of theories the court cannot determine from the general scope of the petition upon which of several theories a recovery is sought it

1953Co., 143 Kan. 740 , 57 P. 2d 467 ; that plaintiff, although not fully pleading facts warranting application of the last clear chance doctrine, may rely thereon, especially if his incomplete allegations were sufficient to inform the defendant of his intention so to do.

1953Co., 143 Kan. 740 , 57 P. 2d 467 ; that plaintiff, although not fully pleading facts warranting application of the last clear chance doctrine, may rely thereon, especially if his incomplete allegations were sufficient to inform the defendant of his intention so to do.

1945(Bichel v. Oliver, 77 Kan. 696 , 95 Pac. 396 ; Fetzer v. Williams, 80 Kan. 554 , 103 Pac. 77 ; Downey v. Phillips, 137 Kan. 362, 364 , 20 P. 2d 453 .) But that rule is in no way inconsistent with the rule firmly established in this state that a petition is demurrable — at least after a motion to make definite and certain in pertinent particulars has been succeessfully resisted — if it does not fairly state a cause of action upon some definite theory.

1945(Bichel v. Oliver, 77 Kan. 696 , 95 Pac. 396 ; Fetzer v. Williams, 80 Kan. 554 , 103 Pac. 77 ; Downey v. Phillips, 137 Kan. 362, 364 , 20 P. 2d 453 .) But that rule is in no way inconsistent with the rule firmly established in this state that a petition is demurrable — at least after a motion to make definite and certain in pertinent particulars has been succeessfully resisted — if it does not fairly state a cause of action upon some definite theory.

1945(Bichel v. Oliver, 77 Kan. 696 , 95 Pac. 396 ; Fetzer v. Williams, 80 Kan. 554 , 103 Pac. 77 ; Downey v. Phillips, 137 Kan. 362, 364 , 20 P. 2d 453 .) But that rule is in no way inconsistent with the rule firmly established in this state that a petition is demurrable — at least after a motion to make definite and certain in pertinent particulars has been succeessfully resisted — if it does not fairly state a cause of action upon some definite theory.

1945(Bichel v. Oliver, 77 Kan. 696 , 95 Pac. 396 ; Fetzer v. Williams, 80 Kan. 554 , 103 Pac. 77 ; Downey v. Phillips, 137 Kan. 362, 364 , 20 P. 2d 453 .) But that rule is in no way inconsistent with the rule firmly established in this state that a petition is demurrable — at least after a motion to make definite and certain in pertinent particulars has been succeessfully resisted — if it does not fairly state a cause of action upon some definite theory.

1945(Bichel v. Oliver, 77 Kan. 696 , 95 Pac. 396 ; Fetzer v. Williams, 80 Kan. 554 , 103 Pac. 77 ; Downey v. Phillips, 137 Kan. 362, 364 , 20 P. 2d 453 .) But that rule is in no way inconsistent with the rule firmly established in this state that a petition is demurrable — at least after a motion to make definite and certain in pertinent particulars has been succeessfully resisted — if it does not fairly state a cause of action upon some definite theory.

1945(Bichel v. Oliver, 77 Kan. 696 , 95 Pac. 396 ; Fetzer v. Williams, 80 Kan. 554 , 103 Pac. 77 ; Downey v. Phillips, 137 Kan. 362, 364 , 20 P. 2d 453 .) But that rule is in no way inconsistent with the rule firmly established in this state that a petition is demurrable — at least after a motion to make definite and certain in pertinent particulars has been succeessfully resisted — if it does not fairly state a cause of action upon some definite theory.

1943Co., 137 Kan. 508 , 21 P. 2d 322 , it was said: “The doctrine of the last clear chance, as set forth in the authorities cited, may be said to be made up' of the following elements: (1) Plaintiff, by his negligence, placed himself in a position of danger; (2) that his negligence had ceased; (3) that defendant seeing plaintiff in a position of danger, or by the exercise of due care should have seen him in such position, by exercising due care on his part had a clear chance to avoid injuring plaintiff; (4) that defendant failed to exercise such due care, and (5) as a result of such failure plaint

1943Co., 137 Kan. 508 , 21 P. 2d 322 , it was said: “The doctrine of the last clear chance, as set forth in the authorities cited, may be said to be made up' of the following elements: (1) Plaintiff, by his negligence, placed himself in a position of danger; (2) that his negligence had ceased; (3) that defendant seeing plaintiff in a position of danger, or by the exercise of due care should have seen him in such position, by exercising due care on his part had a clear chance to avoid injuring plaintiff; (4) that defendant failed to exercise such due care, and (5) as a result of such failure plaint

1943Co., 137 Kan. 508 , 21 P. 2d 322 , it was said: “The doctrine of the last clear chance, as set forth in the authorities cited, may be said to be made up' of the following elements: (1) Plaintiff, by his negligence, placed himself in a position of danger; (2) that his negligence had ceased; (3) that defendant seeing plaintiff in a position of danger, or by the exercise of due care should have seen him in such position, by exercising due care on his part had a clear chance to avoid injuring plaintiff; (4) that defendant failed to exercise such due care, and (5) as a result of such failure plaint

1943Co., 137 Kan. 508 , 21 P. 2d 322 , it was said: “The doctrine of the last clear chance, as set forth in the authorities cited, may be said to be made up' of the following elements: (1) Plaintiff, by his negligence, placed himself in a position of danger; (2) that his negligence had ceased; (3) that defendant seeing plaintiff in a position of danger, or by the exercise of due care should have seen him in such position, by exercising due care on his part had a clear chance to avoid injuring plaintiff; (4) that defendant failed to exercise such due care, and (5) as a result of such failure plaint

1939Co., 144 Kan. 27 , 58 P. 2d 110 .) In the latter case it was said: “It is further contended the doctrine of last clear chance was not in this case.

1939Co., 144 Kan. 27 , 58 P. 2d 110 .) In the latter case it was said: “It is further contended the doctrine of last clear chance was not in this case.

1936Co., 122 Kan. 305 , 252 Pac. 472 , it was held: “In an action for damages for personal injuries sustained by plaintiff in a railway-crossing accident, where the cause was tried on the theory that plain tiff’s negligence would bar a recovery against the defendant railway company unless such recovery could be predicated on the doctrine of the last clear chance, the plaintiff’s evidence examined, and held to show that his own negligence did not cease at any time prior to the collision of defendant’s passenger train and plaintiff’s automobile and consequently a judgment fixing exclusive responsibi

1936Co., 122 Kan. 305 , 252 Pac. 472 , it was held: “In an action for damages for personal injuries sustained by plaintiff in a railway-crossing accident, where the cause was tried on the theory that plain tiff’s negligence would bar a recovery against the defendant railway company unless such recovery could be predicated on the doctrine of the last clear chance, the plaintiff’s evidence examined, and held to show that his own negligence did not cease at any time prior to the collision of defendant’s passenger train and plaintiff’s automobile and consequently a judgment fixing exclusive responsibi

1936Co., 122 Kan. 305 , 252 Pac. 472 , it was held: “In an action for damages for personal injuries sustained by plaintiff in a railway-crossing accident, where the cause was tried on the theory that plain tiff’s negligence would bar a recovery against the defendant railway company unless such recovery could be predicated on the doctrine of the last clear chance, the plaintiff’s evidence examined, and held to show that his own negligence did not cease at any time prior to the collision of defendant’s passenger train and plaintiff’s automobile and consequently a judgment fixing exclusive responsibi

1936Co., 122 Kan. 305 , 252 Pac. 472 , it was held: “In an action for damages for personal injuries sustained by plaintiff in a railway-crossing accident, where the cause was tried on the theory that plain tiff’s negligence would bar a recovery against the defendant railway company unless such recovery could be predicated on the doctrine of the last clear chance, the plaintiff’s evidence examined, and held to show that his own negligence did not cease at any time prior to the collision of defendant’s passenger train and plaintiff’s automobile and consequently a judgment fixing exclusive responsibi

1936Co., 122 Kan. 305 , 252 Pac. 472 , it was held: “In an action for damages for personal injuries sustained by plaintiff in a railway-crossing accident, where the cause was tried on the theory that plain tiff’s negligence would bar a recovery against the defendant railway company unless such recovery could be predicated on the doctrine of the last clear chance, the plaintiff’s evidence examined, and held to show that his own negligence did not cease at any time prior to the collision of defendant’s passenger train and plaintiff’s automobile and consequently a judgment fixing exclusive responsibi

1936Co., 122 Kan. 305 , 252 Pac. 472 , it was held: “In an action for damages for personal injuries sustained by plaintiff in a railway-crossing accident, where the cause was tried on the theory that plain tiff’s negligence would bar a recovery against the defendant railway company unless such recovery could be predicated on the doctrine of the last clear chance, the plaintiff’s evidence examined, and held to show that his own negligence did not cease at any time prior to the collision of defendant’s passenger train and plaintiff’s automobile and consequently a judgment fixing exclusive responsibi