last clear chance doctrine in Oklahoma

1932In a portion of the first paragraph of the syllabus, in the case of Gypsy Oil Co. v. Ginn, 152 Okla. 30 , 3 P. (2d) 714 , this court said: “* * * To establish liability under the so-called humanitarian doctrine, or doctrine of the last clear chance, it is necessary to prove: (1) That the trespasser was in a place of danger; (2) that he was seen in such place of danger by the owner or an agent or servant of the owner; and (3) a failure thereafter to use ordinary care to avert injury.” The instruction given in this case as applicable to the doctrine of the last clear chance was an incorrect appl

1932In a portion of the first paragraph of the syllabus, in the case of Gypsy Oil Co. v. Ginn, 152 Okla. 30 , 3 P. (2d) 714 , this court said: “* * * To establish liability under the so-called humanitarian doctrine, or doctrine of the last clear chance, it is necessary to prove: (1) That the trespasser was in a place of danger; (2) that he was seen in such place of danger by the owner or an agent or servant of the owner; and (3) a failure thereafter to use ordinary care to avert injury.” The instruction given in this case as applicable to the doctrine of the last clear chance was an incorrect appl

1932Co. v. Barkett, 30 Okla. 128 , 118 P. 350 .

1921Co. v. Barkett, 30 Okla. 28 , 118 Pac. 350 , and St.

1928Co. v. Lee, 73 Okla. 165 , 175 Pac. 367 , it is said:| “The last clear chance doctrine recognizes; primary negligence of plaintiff, but that such; negligence has ceased, after which his eon-t dition of peril has been discovered by defendant, and. notwithstanding the priori negligence of plaintiff, the defendant might, by the exercise of ordinary care, have refrained from inflicting any injury on plaintiff.” There was no evidence in the case which would justify an instruction on the theorji of the last clear chance.

1928Co. v. Lee, 73 Okla. 165 , 175 Pac. 367 , it is said:| “The last clear chance doctrine recognizes; primary negligence of plaintiff, but that such; negligence has ceased, after which his eon-t dition of peril has been discovered by defendant, and. notwithstanding the priori negligence of plaintiff, the defendant might, by the exercise of ordinary care, have refrained from inflicting any injury on plaintiff.” There was no evidence in the case which would justify an instruction on the theorji of the last clear chance.

1918Co. v. Baker, 21 Okla. 51 , 95 Pac. 433 , 16 L.

1918Co. v. Baker, 21 Okla. 51 , 95 Pac. 433 , 16 L.

1978In McGuigan v. Harris, Okl., 440 P.2d 680 (1968), a case involving a lien foreclosure, the court stated: “Under the circumstances it is apparent the trial court was required to define substantial performance by a wider explanation of the term, including fitness of the structure for the purposes for which presumably built.

1967While conceivably there would be cases in which application of the boulevard rule and the last clear chance rule, as herein applied, would work an injustice, (in this connection, see the comments in Harper v. Higgs, 225 Md. 24 , 169 A.2d 661, 664 , and Seamon v. Bolton, Ky., 351 S.W.2d 51, 52 ), there is insufficient basis in the record of this case for us to contradict the trial court’s judgment and the specific findings therein contained, including the one that “the deceased’s negligence and the plaintiff’s lack of negligence is such that reasonable men cannot differ.” That court had the ben

1967While conceivably there would be cases in which application of the boulevard rule and the last clear chance rule, as herein applied, would work an injustice, (in this connection, see the comments in Harper v. Higgs, 225 Md. 24 , 169 A.2d 661, 664 , and Seamon v. Bolton, Ky., 351 S.W.2d 51, 52 ), there is insufficient basis in the record of this case for us to contradict the trial court’s judgment and the specific findings therein contained, including the one that “the deceased’s negligence and the plaintiff’s lack of negligence is such that reasonable men cannot differ.” That court had the ben

1967While conceivably there would be cases in which application of the boulevard rule and the last clear chance rule, as herein applied, would work an injustice, (in this connection, see the comments in Harper v. Higgs, 225 Md. 24 , 169 A.2d 661, 664 , and Seamon v. Bolton, Ky., 351 S.W.2d 51, 52 ), there is insufficient basis in the record of this case for us to contradict the trial court’s judgment and the specific findings therein contained, including the one that “the deceased’s negligence and the plaintiff’s lack of negligence is such that reasonable men cannot differ.” That court had the ben

1966Merrill v. Stringer, 58 N.M. 372 , 271 P.2d 405 , (1954); Restatement of Torts, Sec. 479, 480.” In view of -the foregoing plaintiff reasons: (1) this Court recognizes and applies the doctrine of last clear chance; (2) the matters asserted in plaintiff’s opening statement were required to be taken as true, Baker v. Broughton, 193 Okl. 656 , 146 P.2d 832 ; (3) the fact of discovery of plaintiff’s perilous position may be established by circumstantial evidence; (4) plaintiff plainly asserted defendant’s actual discovery of plaintiff’s position of peril; (5) discovery of plaintiff’s peril was suff

1966Merrill v. Stringer, 58 N.M. 372 , 271 P.2d 405 , (1954); Restatement of Torts, Sec. 479, 480.” In view of -the foregoing plaintiff reasons: (1) this Court recognizes and applies the doctrine of last clear chance; (2) the matters asserted in plaintiff’s opening statement were required to be taken as true, Baker v. Broughton, 193 Okl. 656 , 146 P.2d 832 ; (3) the fact of discovery of plaintiff’s perilous position may be established by circumstantial evidence; (4) plaintiff plainly asserted defendant’s actual discovery of plaintiff’s position of peril; (5) discovery of plaintiff’s peril was suff

1966Merrill v. Stringer, 58 N.M. 372 , 271 P.2d 405 , (1954); Restatement of Torts, Sec. 479, 480.” In view of -the foregoing plaintiff reasons: (1) this Court recognizes and applies the doctrine of last clear chance; (2) the matters asserted in plaintiff’s opening statement were required to be taken as true, Baker v. Broughton, 193 Okl. 656 , 146 P.2d 832 ; (3) the fact of discovery of plaintiff’s perilous position may be established by circumstantial evidence; (4) plaintiff plainly asserted defendant’s actual discovery of plaintiff’s position of peril; (5) discovery of plaintiff’s peril was suff

1966Merrill v. Stringer, 58 N.M. 372 , 271 P.2d 405 , (1954); Restatement of Torts, Sec. 479, 480.” In view of -the foregoing plaintiff reasons: (1) this Court recognizes and applies the doctrine of last clear chance; (2) the matters asserted in plaintiff’s opening statement were required to be taken as true, Baker v. Broughton, 193 Okl. 656 , 146 P.2d 832 ; (3) the fact of discovery of plaintiff’s perilous position may be established by circumstantial evidence; (4) plaintiff plainly asserted defendant’s actual discovery of plaintiff’s position of peril; (5) discovery of plaintiff’s peril was suff

1939Co. (N. Y.) 172 N. E. 471 , 472: “The doctrine of last clear chance, however, is never wakened into action unless and until there is brought home to the defendant to be charged with liability a knowledge that another is in a state of present peril.” In this connection we also direct attention to Pennsylvania R.

1939Co. v. Swartzel, 17 F. 2d 869 , to the effect that the last clear chance doctrine does not apply unless the peril is actually discovered, the theory of the doctrine being based upon and confined to conduct subsequent to discovery of the danger.

1939Co. v. Swartzel, 17 F. 2d 869 , to the effect that the last clear chance doctrine does not apply unless the peril is actually discovered, the theory of the doctrine being based upon and confined to conduct subsequent to discovery of the danger.

1936A. (N. S.) 687 note: Terre Haute, etc., Co. v Stevenson, 189 Ind. 100 , 123 N. E. 785 .” In conclusion, it is my theory that there is no inconsistency or repugnancy in pleading primary negligence and' the doctrine of the last clear chance; that a plaintiff in seeking to recover damages for injuries sustained on account of negligence should be permitted to plead in the alternative; that such pleading, even though in the alternative, which seeks to recover upon different combinations of facts,-either of which would establish the liability of the defendant, should be liberally construed, and when

1936A. (N. S.) 687 note: Terre Haute, etc., Co. v Stevenson, 189 Ind. 100 , 123 N. E. 785 .” In conclusion, it is my theory that there is no inconsistency or repugnancy in pleading primary negligence and' the doctrine of the last clear chance; that a plaintiff in seeking to recover damages for injuries sustained on account of negligence should be permitted to plead in the alternative; that such pleading, even though in the alternative, which seeks to recover upon different combinations of facts,-either of which would establish the liability of the defendant, should be liberally construed, and when

1934Under such circumstances, there is no place for the application of contributory- negligence, or the doctrine of last clear chance.” In the case of Murphy v. National Ice Cream Co., 300 P. 91 , the Appellate Court of California had for -consideration a case very similar from a standpoint of facts to the instant case.

1934Both parties were entitled to have their theories properly presented, White v. Hughes, 145 Okla. 192 , 292 P. 37 .

1934Both parties were entitled to have their theories properly presented, White v. Hughes, 145 Okla. 192 , 292 P. 37 .

1932Co. v. Barkett, 30 Okla. 128 , 118 P. 350 .

1932Co. v. Swartzel, 17 Fed. (2d) 869.” “To establish liability under the so-called humanitarian doctrine, or doctrine of the last clear chance, it is necessary to prove: (1) That the person was in a place of danger; (2) that he was seen in such place of danger by the owner or an agent or servant of the owner: and (3) a failure thereafter to use ordinary care to avert injury.” In Lusk et al. v. Haley, 75 Okla. 206 , 181 P. 727 , there was a conflict between the testimony of the engineer and the physical facts, which conflict this court held to be sufficient to require the submission of the issue t

1932Co. v. Swartzel, 17 Fed. (2d) 869.” “To establish liability under the so-called humanitarian doctrine, or doctrine of the last clear chance, it is necessary to prove: (1) That the person was in a place of danger; (2) that he was seen in such place of danger by the owner or an agent or servant of the owner: and (3) a failure thereafter to use ordinary care to avert injury.” In Lusk et al. v. Haley, 75 Okla. 206 , 181 P. 727 , there was a conflict between the testimony of the engineer and the physical facts, which conflict this court held to be sufficient to require the submission of the issue t

1931Traction Co. v. Tice, 116 Okla. 24 , 243 Pac. 175 , this court approved an instruction in the following form: *16 “* * * If you believe from tbe evidence that the plaintiff did not observe the apt proaching street car, bat that the motorman on said street ear saw the plaintiff, and when the motorman, otherwise in the exercise of ordinary care, observed that' the plaintiff was not going to stop, then it was the duty of the motorman to use every means reasonably within his power to stop the street car and avoid a collision, and .if he failed to do this, then your verdict should be for the plaint

1931Traction Co. v. Tice, 116 Okla. 24 , 243 Pac. 175 , this court approved an instruction in the following form: *16 “* * * If you believe from tbe evidence that the plaintiff did not observe the apt proaching street car, bat that the motorman on said street ear saw the plaintiff, and when the motorman, otherwise in the exercise of ordinary care, observed that' the plaintiff was not going to stop, then it was the duty of the motorman to use every means reasonably within his power to stop the street car and avoid a collision, and .if he failed to do this, then your verdict should be for the plaint

1925Southern Railway Co. v. Stewart, 153 Ala. 133 ; L. & N. Railway Co. v. Young, 153 Ala. 232 , 16 L.

1925Southern Railway Co. v. Stewart, 153 Ala. 133 ; L. & N. Railway Co. v. Young, 153 Ala. 232 , 16 L.

1925Co. v. Cole, 46 Okla. 753 , 149 Pac. 861 , and other cases cited in the opinion, and the eases of Clark v. St.

1925Co. v. Cole, 46 Okla. 753 , 149 Pac. 861 , and other cases cited in the opinion, and the eases of Clark v. St.

1925This last mentioned case was commented upon in the case of Muskogee Electric Traction Co. v. Tanner, 93 Okla. 284 , 220 Pac. 655 , which case' is among the last pronouncements of this court upon the principle of the last clear chance, as applied to street railways, and attorneys for plaintiff, in their brief, cite many cases in support of the instruction complained of in this case, but, in our opinion, it is unnecessary to go further than the ease of Muskogee Electric Traction Co. v. Tanner, supra, where this court upheld an instruction given by the trial court upon the doctrine of the last cl

1925This last mentioned case was commented upon in the case of Muskogee Electric Traction Co. v. Tanner, 93 Okla. 284 , 220 Pac. 655 , which case' is among the last pronouncements of this court upon the principle of the last clear chance, as applied to street railways, and attorneys for plaintiff, in their brief, cite many cases in support of the instruction complained of in this case, but, in our opinion, it is unnecessary to go further than the ease of Muskogee Electric Traction Co. v. Tanner, supra, where this court upheld an instruction given by the trial court upon the doctrine of the last cl

1908The Supreme Court of the United States, in the case of Inland & Sea-Board Coasting Co. v. Tolson, 139 U. S. 551 , 11 Sup. Ct. 653, 35 L.

1908The Supreme Court of the United States, in the case of Inland & Sea-Board Coasting Co. v. Tolson, 139 U. S. 551 , 11 Sup. Ct. 653, 35 L.