last clear chance doctrine in Missouri

1941S. Railroad Co., 137 Kan. 508 , 512, 21 P.2d 322 , as to the elements of the last clear chance doctrine, as follows: "`(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.'" The court then said: "This statement is ope

1941S. Railroad Co., 137 Kan. 508 , 512, 21 P.2d 322 , as to the elements of the last clear chance doctrine, as follows: "`(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.'" The court then said: "This statement is ope

1963Definitive statement of the Kansas Last Clear Chance Doctrine appears in a 1958 case 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 had a clear chance to avoid injuring the plaintiff; (4) that the defendant failed to exercise such due care; and (5) as a

1963Definitive statement of the Kansas Last Clear Chance Doctrine appears in a 1958 case 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 had a clear chance to avoid injuring the plaintiff; (4) that the defendant failed to exercise such due care; and (5) as a

1960In Tenney v. Enkeball, 62 Ariz. 416 , 158 P.2d 519 , the driver of defendant's truck drove several blocks with plaintiff on the running board in a position which the driver knew to be dangerous.

1960In Tenney v. Enkeball, 62 Ariz. 416 , 158 P.2d 519 , the driver of defendant's truck drove several blocks with plaintiff on the running board in a position which the driver knew to be dangerous.

1959Rottman v. Beverly, 183 La. 947 , 165 So. 153 ; Jackson v. Cook, 189 La. 860 , 181 So. 195 ; Shipp v. St.

1959Rottman v. Beverly, 183 La. 947 , 165 So. 153 ; Jackson v. Cook, 189 La. 860 , 181 So. 195 ; Shipp v. St.

1959Rottman v. Beverly, 183 La. 947 , 165 So. 153 ; Jackson v. Cook, 189 La. 860 , 181 So. 195 ; Shipp v. St.

1959Rottman v. Beverly, 183 La. 947 , 165 So. 153 ; Jackson v. Cook, 189 La. 860 , 181 So. 195 ; Shipp v. St.

1959Darby v. Henwood, 346 Mo. 1204 , 145 S.W.2d 376, 380 ; Whiteaker v. Mo. Pac.

1959Darby v. Henwood, 346 Mo. 1204 , 145 S.W.2d 376, 380 ; Whiteaker v. Mo. Pac.

1957Co., supra. [ 165 Kan. 279 , 194 P.2d 497 ], it was observed that a plaintiff who invokes the last clear chance doctrine has the burden of bringing his cause within the doctrine; and, in the further discussion of principles of law relevant to the ultimate issue in such a case, that court approvingly quoted an excerpt from 44 Am.Jur., Railroads, § 495, p. 733, at pages 734 — 735, as follows, “ ‘But while the relative rights and obligations of a railroad company and travelers on the highway are reciprocal, it is the privilege of the railroad company that its trains shall have the right of way, a

1944Co., 301 Mo. 79 , 256 S.W. 169 . [3] In the former case, in addition to negligence of defendant under the last clear chance doctrine of Kansas, primary negligence of defendant was specifically alleged by plaintiff and submitted by the trial court to the jury; but in the review of the former case (as herein), in ruling upon the question of whether the plaintiff made a case, this court considered solely the theory of liability under the last clear chance doctrine [431] of Kansas ( 347 Mo. at page 911 ). *Page 763 Contentions of defendant (appellant) in the review of the former case necessitated

1944Co., 301 Mo. 79 , 256 S.W. 169 . [3] In the former case, in addition to negligence of defendant under the last clear chance doctrine of Kansas, primary negligence of defendant was specifically alleged by plaintiff and submitted by the trial court to the jury; but in the review of the former case (as herein), in ruling upon the question of whether the plaintiff made a case, this court considered solely the theory of liability under the last clear chance doctrine [431] of Kansas ( 347 Mo. at page 911 ). *Page 763 Contentions of defendant (appellant) in the review of the former case necessitated

1944Co., 301 Mo. 79 , 256 S.W. 169 . [3] In the former case, in addition to negligence of defendant under the last clear chance doctrine of Kansas, primary negligence of defendant was specifically alleged by plaintiff and submitted by the trial court to the jury; but in the review of the former case (as herein), in ruling upon the question of whether the plaintiff made a case, this court considered solely the theory of liability under the last clear chance doctrine [431] of Kansas ( 347 Mo. at page 911 ). *Page 763 Contentions of defendant (appellant) in the review of the former case necessitated

1944However, a paragraph was included in the opinion, 147 Kan. at page 196 , which appears to us as not necessary to the decision, "Moreover, if the trial court had assumed that plaintiff's contributory negligence had ceased, . . . the fact still remains that plaintiff's evidence did not bring him under the doctrine of last clear chance.

1941Louis Public Service Co., 335 Mo. 951 , 74 S.W.2d 600 , 603.] [4] Although appellant contends that plaintiff made no case for the jury on any theory, in its reply brief it states: "It must be borne in mind that the only possible theory upon which the case could have been submitted to the jury was under the last clear chance doctrine of Kansas." If, from all the evidence considered in a light most favorable to plaintiff, a case was made for the jury upon any ground for recovery alleged in the petition, the requested peremptory instruction was properly refused. [5] Did plaintiff make a case for

1941Louis Public Service Co., 335 Mo. 951 , 74 S.W.2d 600 , 603.] [4] Although appellant contends that plaintiff made no case for the jury on any theory, in its reply brief it states: "It must be borne in mind that the only possible theory upon which the case could have been submitted to the jury was under the last clear chance doctrine of Kansas." If, from all the evidence considered in a light most favorable to plaintiff, a case was made for the jury upon any ground for recovery alleged in the petition, the requested peremptory instruction was properly refused. [5] Did plaintiff make a case for

1941Co., supra. In Gilbert v. Railway Co., 91 Kan. 711 , 718, 139 P. 380, 383 , the court 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." Appellant relies upon the Bollinger and Caylor cases, supra, but still insists that under the law of Kansas the last clear chance doctrine is one of "discovered peril." Appellant relies upon a particular statement in the case of Maris v. Lawrence Ry.

1941Co., supra. In Gilbert v. Railway Co., 91 Kan. 711 , 718, 139 P. 380, 383 , the court 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." Appellant relies upon the Bollinger and Caylor cases, supra, but still insists that under the law of Kansas the last clear chance doctrine is one of "discovered peril." Appellant relies upon a particular statement in the case of Maris v. Lawrence Ry.

1941Light Co., 98 Kan. 205 , 158 P. 6, 7 .

1941Light Co., 98 Kan. 205 , 158 P. 6, 7 .

1934Co., 245 N. W. 219 .

1934Co., 245 N. W. 219 .

1934We think the evidence and findings warranted the inference that the motorman failed to do what he could and should have done to avoid the injury to plaintiff after he saw or should have seen that the situation was such that plaintiff was unable to save himself ." And in Atherton v. Railway Co., 107 Kan. 6 , the court said: "Counsel for the defendant frankly concede that the doctrine of last clear chance, as frequently declared in this state, applies when the defendant actually finds the plaintiff in a condition of peril, or by the exercise of proper care should so find him; his own negligence

1909Therefore, if the defendant’s negligence contributes with that of plaintiff only, the case is one of concurring negligence and the plaintiff is debarred of recovery for the reason that defendant’s negligence, instead of being the sole and proximate cause of his injury, operated only to contribute with plaintiff’s own fault. [Smith v. Hardesty, 31 Mo. 411 .] In view of these principles, the Supreme Court, in Hof v. St.

1908His recovery was permitted in that instance only upon the doctrine of the last clear chance, it appearing, that his injury could have been averted by the exercise of ordinary care on the part of the locomotive engineer. [Mann v. Railroad Co., 123 Mo. App. 486, 492 .] Plaintiff in this case was entirely familiar with the situation.

1906Here is abundant evidence authorizing the submission of the case to the jury under the last clear chance doctrine, as announced by the Supreme and Appellate courts of the State, and the court was justified in refusing the peremptory instruction. [Guenther v. Railway, 95 Mo. 286 ; s. c., 108 Mo. 18 , 18 S. W. 846 ; Morgan v. Wabash Ry.

1906Here is abundant evidence authorizing the submission of the case to the jury under the last clear chance doctrine, as announced by the Supreme and Appellate courts of the State, and the court was justified in refusing the peremptory instruction. [Guenther v. Railway, 95 Mo. 286 ; s. c., 108 Mo. 18 , 18 S. W. 846 ; Morgan v. Wabash Ry.

1906Co., 159 Mo. 262 , 60 S. W. 195 ; Moore v. St.

1906Co., 159 Mo. 262 , 60 S. W. 195 ; Moore v. St.