last clear chance or discovered peril doctrine in Louisiana

1969“In Tate v. Hill [La.App.], 197 So.2d 107 , the court stated that the plaintiff must discharge the burden of establishing three basic factors required for the application of the doctrine of last clear chance or discovered peril, and, as quoted from Jones v. Dozier [La.App.], 160 So.2d 395 , they are these: ‘First plaintiff must establish that he was in a position of peril of which he was unaware or from which he was unable to extricate himself.

1969These factors were stated by us in Jones v. Dozier, La.App., 160 So.2d 395 , at page 398, as follows: ‘First plaintiff must establish that he was in a position of peril of which he was unaware or from which he was unable to extricate himself.

1962Plaintiffs next contend the truck driver, his employer and its insurer should be held responsible under the doctrine of last clear chance or discovered peril, and cite as authority, Rottman v. Beverly, 183 La. 947 , 165 So. 153 (1936) and Jackson v. Cook, 189 La. 860 , 181 So. 195 (1938).

1962Plaintiffs next contend the truck driver, his employer and its insurer should be held responsible under the doctrine of last clear chance or discovered peril, and cite as authority, Rottman v. Beverly, 183 La. 947 , 165 So. 153 (1936) and Jackson v. Cook, 189 La. 860 , 181 So. 195 (1938).

1962Plaintiffs next contend the truck driver, his employer and its insurer should be held responsible under the doctrine of last clear chance or discovered peril, and cite as authority, Rottman v. Beverly, 183 La. 947 , 165 So. 153 (1936) and Jackson v. Cook, 189 La. 860 , 181 So. 195 (1938).

1962Plaintiffs next contend the truck driver, his employer and its insurer should be held responsible under the doctrine of last clear chance or discovered peril, and cite as authority, Rottman v. Beverly, 183 La. 947 , 165 So. 153 (1936) and Jackson v. Cook, 189 La. 860 , 181 So. 195 (1938).

1969“In Tate v. Hill [La.App.], 197 So.2d 107 , the court stated that the plaintiff must discharge the burden of establishing three basic factors required for the application of the doctrine of last clear chance or discovered peril, and, as quoted from Jones v. Dozier [La.App.], 160 So.2d 395 , they are these: ‘First plaintiff must establish that he was in a position of peril of which he was unaware or from which he was unable to extricate himself.

1969In Tate v. Hill, 197 So.2d 107 (La.App. 1st Cir., 1967), rehearing denied April 17, 1967, writ refused June 9, 1967, this Court held: “The doctrine of last clear chance or discovered peril has been the subject of considerable litigation and the jurisprudence of this state is now well settled to the effect that to warrant its application, plaintiff must discharge the burden of establishing three basic factors by a preponderance of evidence.

1962Williamson v. State Farm Mutual Automobile Insurance Company, 84 So.2d 243 (La.App.2d Cir., 1955) ; Watkins et ux. v. Strickland Transportation Company, Inc. et al., 90 So.2d 561 , (La.App.2d Cir., 1956); Moran v. Lumbermens Mutual Casualty Company, 98 So.2d 530, 531 (La.App.2d Cir., 1957); Newton v. Pacillo et al., 111 So.2d 895 , (La.App.2d Cir., 1959); Clark v. Shannon et al., 120 So.2d 307 (La.App.2d Cir., 1960).

1960The facts involved in the instant case are comparable in many respects to those which were under consideration by this court in Flowers v. Morris, La.App., 43 So.2d 917 , and Newton v. Pacillo, La.App., 111 So.2d 895 (writs denied), in both of which cases the doctrine of last clear chance was asserted.

1961As stated in the case of Maryland Casualty Company v. Allstate Insurance Company, La.App., 2 Cir., 96 So.2d 340, 344 , before the above doctrine can be applied in any given case, three elements must exist: "`* * * (a) plaintiff in a position of peril of which he was unaware or unable to extricate himself; (b) defendant in a position where he actually discovered, or should have discovered, the plaintiff's peril; (c) at such time that the defendant could have by the exercise of reasonable care, avoided the accident. * * *'" *366 We are of the opinion, as was the trial judge, that the doctrine of

1961As stated in the case of Maryland Casualty Company v. Allstate Insurance Company (La.App., 2 Cir.), 96 So.2d 340, 344 , before the above doctrine can be applied in any given case, three elements must exist: "`* * * (a) plaintiff in a position of peril of which he was unaware or unable to extricate himself; (b) defendant in a position where he actually discovered, or should have discovered, the plaintiff's peril; (c) at such time that the defendant could have by the exercise of reasonable care, avoided the accident. * * *'" Applying the tests used above, we are of the opinion that the doctrine

1972Gauthreaux v. Edrington (La.App. 1st Cir. 1969), 220 So.2d 138 , and cases cited therein.

1969Glatt v. Hinton, La.App., 205 So.2d 91 ; Kraft v. U. Koen & Company, La.App., 188 So.2d 203 ; Moses v. Sanders, La.App., 164 So.2d 177 ; Soileau v. New Hampshire Insurance Company, La.App., 160 So.2d 793 .

1969Glatt v. Hinton, La.App., 205 So.2d 91 ; Kraft v. U. Koen & Company, La.App., 188 So.2d 203 ; Moses v. Sanders, La.App., 164 So.2d 177 ; Soileau v. New Hampshire Insurance Company, La.App., 160 So.2d 793 .

1969Glatt v. Hinton, La.App., 205 So.2d 91 ; Kraft v. U. Koen & Company, La.App., 188 So.2d 203 ; Moses v. Sanders, La.App., 164 So.2d 177 ; Soileau v. New Hampshire Insurance Company, La.App., 160 So.2d 793 .

1969Glatt v. Hinton, La.App., 205 So.2d 91 ; Kraft v. U. Koen & Company, La.App., 188 So.2d 203 ; Moses v. Sanders, La.App., 164 So.2d 177 ; Soileau v. New Hampshire Insurance Company, La.App., 160 So.2d 793 .

1962Williamson v. State Farm Mutual Automobile Insurance Company, 84 So.2d 243 (La.App.2d Cir., 1955) ; Watkins et ux. v. Strickland Transportation Company, Inc. et al., 90 So.2d 561 , (La.App.2d Cir., 1956); Moran v. Lumbermens Mutual Casualty Company, 98 So.2d 530, 531 (La.App.2d Cir., 1957); Newton v. Pacillo et al., 111 So.2d 895 , (La.App.2d Cir., 1959); Clark v. Shannon et al., 120 So.2d 307 (La.App.2d Cir., 1960).

1962Williamson v. State Farm Mutual Automobile Insurance Company, 84 So.2d 243 (La.App.2d Cir., 1955) ; Watkins et ux. v. Strickland Transportation Company, Inc. et al., 90 So.2d 561 , (La.App.2d Cir., 1956); Moran v. Lumbermens Mutual Casualty Company, 98 So.2d 530, 531 (La.App.2d Cir., 1957); Newton v. Pacillo et al., 111 So.2d 895 , (La.App.2d Cir., 1959); Clark v. Shannon et al., 120 So.2d 307 (La.App.2d Cir., 1960).

1962Williamson v. State Farm Mutual Automobile Insurance Company, 84 So.2d 243 (La.App.2d Cir., 1955) ; Watkins et ux. v. Strickland Transportation Company, Inc. et al., 90 So.2d 561 , (La.App.2d Cir., 1956); Moran v. Lumbermens Mutual Casualty Company, 98 So.2d 530, 531 (La.App.2d Cir., 1957); Newton v. Pacillo et al., 111 So.2d 895 , (La.App.2d Cir., 1959); Clark v. Shannon et al., 120 So.2d 307 (La.App.2d Cir., 1960).

1961The doctrine of last clear chance or discovered peril has often been referred to as "a two-edged sword, applicable equally to the rights of a defendant and those of a plaintiff." Bagala v. Kimble, 225 La. 943 , 74 So.2d 172 ; Bergeron v. Department of Highways, 221 La. 595 , 60 So.2d 4 ; Wheat v. Brandt, La.App. 2d Cir., 1952, 61 So.2d 238 ; 38 Am.Jur. 911, "Negligence," § 227.

1961The doctrine of last clear chance or discovered peril has often been referred to as "a two-edged sword, applicable equally to the rights of a defendant and those of a plaintiff." Bagala v. Kimble, 225 La. 943 , 74 So.2d 172 ; Bergeron v. Department of Highways, 221 La. 595 , 60 So.2d 4 ; Wheat v. Brandt, La.App. 2d Cir., 1952, 61 So.2d 238 ; 38 Am.Jur. 911, "Negligence," § 227.

1961The doctrine of last clear chance or discovered peril has often been referred to as "a two-edged sword, applicable equally to the rights of a defendant and those of a plaintiff." Bagala v. Kimble, 225 La. 943 , 74 So.2d 172 ; Bergeron v. Department of Highways, 221 La. 595 , 60 So.2d 4 ; Wheat v. Brandt, La.App. 2d Cir., 1952, 61 So.2d 238 ; 38 Am.Jur. 911, "Negligence," § 227.

1961The doctrine of last clear chance or discovered peril has often been referred to as "a two-edged sword, applicable equally to the rights of a defendant and those of a plaintiff." Bagala v. Kimble, 225 La. 943 , 74 So.2d 172 ; Bergeron v. Department of Highways, 221 La. 595 , 60 So.2d 4 ; Wheat v. Brandt, La.App. 2d Cir., 1952, 61 So.2d 238 ; 38 Am.Jur. 911, "Negligence," § 227.

1961The doctrine of last clear chance or discovered peril has often been referred to as "a two-edged sword, applicable equally to the rights of a defendant and those of a plaintiff." Bagala v. Kimble, 225 La. 943 , 74 So.2d 172 ; Bergeron v. Department of Highways, 221 La. 595 , 60 So.2d 4 ; Wheat v. Brandt, La.App. 2d Cir., 1952, 61 So.2d 238 ; 38 Am.Jur. 911, "Negligence," § 227.

1960The facts involved in the instant case are comparable in many respects to those which were under consideration by this court in Flowers v. Morris, La.App., 43 So.2d 917 , and Newton v. Pacillo, La.App., 111 So.2d 895 (writs denied), in both of which cases the doctrine of last clear chance was asserted.