last clear chance doctrine in Kentucky

1972It is true, as observed in Severance v. Sohan, Ky.1961, 347 S.W.2d 498, 501 , that over the years the last clear chance doctrine has been trimmed to a narrower (and, we believe, more accurate) basis.

1970Appellants rely upon Severance v. Sohan, Ky., 347 S.W.2d 498 , to support their view that the doctrine of last clear chance should as a matter of law not apply in the instant case.

1967In Saddler v. Parham, Ky., 249 S.W.2d 945 (1952), and in Riley v. Hornbuckle, Ky., 366 S.W.2d 304 (1963), it was pointed out that the last clear chance doctrine has been limited in application to a situation where a party is in peril from which he is physically unable to escape and the other party should have discovered the peril in time to clearly have a chance to avoid an accident.

1961Though there are many earlier decisions indicating a rather loose application of the last clear chance doctrine, the more restrictive theory on which this court has settled over the last decade or so is best exemplified in such cases as Kentucky & West Virginia Power Co. v. Lawson, Ky. 1951, 240 S.W.2d 843 ; Saddler v. Parham, Ky.1952, 249 S.W.2d 945 ; Underwood v. Gardner, Ky.1952, 249 S.W.2d 950 ; Johnson v. Morris’ Adm’x, Ky.1955, 282 S.W.2d 835 ; and Whitesides v. Reed, Ky.1957, 306 S.W.2d 249 .

1968Adhering to the concept of the last clear chance doctrine given expression in such recent cases as Riley v. Hornbuckle, Ky., 366 S.W.2d 304 ; Fenwick v. Daugherty, Ky., 418 S.W.2d 243 ; Shea v. Bruner, Ky., 426 S.W.2d 482 ; French v. Mozzali, Ky., 433 S.W.2d 122 (decided March 8, 1968), and Marshall v. Merrifield, Ky., 431 S.W.2d 870 (decided today) we are of the opinion that the evidence was sufficient to make a submissible issue under the last clear chance doctrine, and hence, the court below properly overruled the defendant’s motion for a directed verdict and for .a judgment notwithstanding

1967In Saddler v. Parham, Ky., 249 S.W.2d 945 (1952), and in Riley v. Hornbuckle, Ky., 366 S.W.2d 304 (1963), it was pointed out that the last clear chance doctrine has been limited in application to a situation where a party is in peril from which he is physically unable to escape and the other party should have discovered the peril in time to clearly have a chance to avoid an accident.

1970Without undertaking an analysis of our many recent cases, we observe that the present case clearly is one for a last clear chance instruction within the authority of Meredith v. Crumpton, Ky., 434 S.W.2d 648 ; Nixon v. Morris, Ky., 433 S.W.2d 364 ; Cassinelli v. Begley, Ky., 433 S.W.2d 651 ; Marshall v. Merrifield, Ky., 431 S.W.2d 870 ; Payne v. Zapp, Ky., 431 S.W.2d 890 ; French v. Mozzali, Ky., 433 S.W.2d 122 ; Shea v. Bruner, Ky., 426 S.W.2d 482 ; Fenwick v. Daugherty, Ky., 418 S.W.2d 243 ; and Frank v. Silvers, Ky., 414 S.W.2d 887 .

1968(The appellee testified his speed was 30 or 35 miles per hour.) A majority of this court, adhering to the concept of the last clear chance doctrine given expression in such recent cases as Fenwick v. Daugherty, Ky., 418 S.W.2d 243 , Shea v. Bruner, Ky., 426 S.W.2d 482 (decided October 13, 1967), and French v. Mazzoli, Ky., 433 S.W.2d 122 (decided March 8, 1968), are of the opinion that the appellants were entitled to a last clear chance instruction in this case, predicated upon a finding by the jury that the appellants were in the process of crossing Broadway from north to south and were not i

1970Without undertaking an analysis of our many recent cases, we observe that the present case clearly is one for a last clear chance instruction within the authority of Meredith v. Crumpton, Ky., 434 S.W.2d 648 ; Nixon v. Morris, Ky., 433 S.W.2d 364 ; Cassinelli v. Begley, Ky., 433 S.W.2d 651 ; Marshall v. Merrifield, Ky., 431 S.W.2d 870 ; Payne v. Zapp, Ky., 431 S.W.2d 890 ; French v. Mozzali, Ky., 433 S.W.2d 122 ; Shea v. Bruner, Ky., 426 S.W.2d 482 ; Fenwick v. Daugherty, Ky., 418 S.W.2d 243 ; and Frank v. Silvers, Ky., 414 S.W.2d 887 .

1968In Marshall v. Merrifield, Ky., 431 S.W.2d 870 (decided September 20, 1968), we justified a last clear chance instruction where the injured Marshall was not in or near a crosswalk but in the middle of a block and standing in the center of the street.

1970Without undertaking an analysis of our many recent cases, we observe that the present case clearly is one for a last clear chance instruction within the authority of Meredith v. Crumpton, Ky., 434 S.W.2d 648 ; Nixon v. Morris, Ky., 433 S.W.2d 364 ; Cassinelli v. Begley, Ky., 433 S.W.2d 651 ; Marshall v. Merrifield, Ky., 431 S.W.2d 870 ; Payne v. Zapp, Ky., 431 S.W.2d 890 ; French v. Mozzali, Ky., 433 S.W.2d 122 ; Shea v. Bruner, Ky., 426 S.W.2d 482 ; Fenwick v. Daugherty, Ky., 418 S.W.2d 243 ; and Frank v. Silvers, Ky., 414 S.W.2d 887 .

1968(The appellee testified his speed was 30 or 35 miles per hour.) A majority of this court, adhering to the concept of the last clear chance doctrine given expression in such recent cases as Fenwick v. Daugherty, Ky., 418 S.W.2d 243 , Shea v. Bruner, Ky., 426 S.W.2d 482 (decided October 13, 1967), and French v. Mazzoli, Ky., 433 S.W.2d 122 (decided March 8, 1968), are of the opinion that the appellants were entitled to a last clear chance instruction in this case, predicated upon a finding by the jury that the appellants were in the process of crossing Broadway from north to south and were not i

1970Without undertaking an analysis of our many recent cases, we observe that the present case clearly is one for a last clear chance instruction within the authority of Meredith v. Crumpton, Ky., 434 S.W.2d 648 ; Nixon v. Morris, Ky., 433 S.W.2d 364 ; Cassinelli v. Begley, Ky., 433 S.W.2d 651 ; Marshall v. Merrifield, Ky., 431 S.W.2d 870 ; Payne v. Zapp, Ky., 431 S.W.2d 890 ; French v. Mozzali, Ky., 433 S.W.2d 122 ; Shea v. Bruner, Ky., 426 S.W.2d 482 ; Fenwick v. Daugherty, Ky., 418 S.W.2d 243 ; and Frank v. Silvers, Ky., 414 S.W.2d 887 .

1968(The appellee testified his speed was 30 or 35 miles per hour.) A majority of this court, adhering to the concept of the last clear chance doctrine given expression in such recent cases as Fenwick v. Daugherty, Ky., 418 S.W.2d 243 , Shea v. Bruner, Ky., 426 S.W.2d 482 (decided October 13, 1967), and French v. Mazzoli, Ky., 433 S.W.2d 122 (decided March 8, 1968), are of the opinion that the appellants were entitled to a last clear chance instruction in this case, predicated upon a finding by the jury that the appellants were in the process of crossing Broadway from north to south and were not i

1970Without undertaking an analysis of our many recent cases, we observe that the present case clearly is one for a last clear chance instruction within the authority of Meredith v. Crumpton, Ky., 434 S.W.2d 648 ; Nixon v. Morris, Ky., 433 S.W.2d 364 ; Cassinelli v. Begley, Ky., 433 S.W.2d 651 ; Marshall v. Merrifield, Ky., 431 S.W.2d 870 ; Payne v. Zapp, Ky., 431 S.W.2d 890 ; French v. Mozzali, Ky., 433 S.W.2d 122 ; Shea v. Bruner, Ky., 426 S.W.2d 482 ; Fenwick v. Daugherty, Ky., 418 S.W.2d 243 ; and Frank v. Silvers, Ky., 414 S.W.2d 887 .

1969See Payne v. Zapp, Ky., 431 S.W.2d 890 ; George v. Evans, Ky., 405 S.W.2d 285 ; Frank v. Silvers, Ky., 414 S.W.2d 887 ; Fenwick v. Daugherty, Ky., 418 S.W.2d 243 ; Shea v. Bruner, Ky., 426 S.W.2d 482 ; French v. Mozzali, Ky., 433 S.W.2d 122 ; and Nixon v. Morris, Ky., 433 S.W.2d 364 .

1964Desgrosiellier v. Vaughn, Ky., 320 S.W.2d 304 ; Smith v. Crenshaw, Ky., 344 S.W.2d 393 ; Seamon v. Bolton, Ky., 351 S.W.2d 51 .

1962In Desgrosiellier v. Vaughn, Ky., 320 S.W.2d 304 , it was held that the doctrine should not be applied in the ordinary intersection accident case.

1961Though there are many earlier decisions indicating a rather loose application of the last clear chance doctrine, the more restrictive theory on which this court has settled over the last decade or so is best exemplified in such cases as Kentucky & West Virginia Power Co. v. Lawson, Ky. 1951, 240 S.W.2d 843 ; Saddler v. Parham, Ky.1952, 249 S.W.2d 945 ; Underwood v. Gardner, Ky.1952, 249 S.W.2d 950 ; Johnson v. Morris’ Adm’x, Ky.1955, 282 S.W.2d 835 ; and Whitesides v. Reed, Ky.1957, 306 S.W.2d 249 .

1961Though there are many earlier decisions indicating a rather loose application of the last clear chance doctrine, the more restrictive theory on which this court has settled over the last decade or so is best exemplified in such cases as Kentucky & West Virginia Power Co. v. Lawson, Ky. 1951, 240 S.W.2d 843 ; Saddler v. Parham, Ky.1952, 249 S.W.2d 945 ; Underwood v. Gardner, Ky.1952, 249 S.W.2d 950 ; Johnson v. Morris’ Adm’x, Ky.1955, 282 S.W.2d 835 ; and Whitesides v. Reed, Ky.1957, 306 S.W.2d 249 .

1961Though there are many earlier decisions indicating a rather loose application of the last clear chance doctrine, the more restrictive theory on which this court has settled over the last decade or so is best exemplified in such cases as Kentucky & West Virginia Power Co. v. Lawson, Ky. 1951, 240 S.W.2d 843 ; Saddler v. Parham, Ky.1952, 249 S.W.2d 945 ; Underwood v. Gardner, Ky.1952, 249 S.W.2d 950 ; Johnson v. Morris’ Adm’x, Ky.1955, 282 S.W.2d 835 ; and Whitesides v. Reed, Ky.1957, 306 S.W.2d 249 .

1958The last clear chance doctrine as applied in automobile cases is fully discussed in Johnson v. Morris’ Adm’x, Ky., 282 S.W.2d 835 .

1951Louisville & Nashville Railroad Co. v. Benke’s Administrator, 176 Ky. 259 , 195 S.W. 417 ; Kentucky Traction & Terminal Co. v., Wilburn, 206 Ky. 510 , 267 S.W. 1090, 1091 .

1938Braden’s Adm’x v. Liston, 258 Ky. 44 , 79 S. W. (2d) 241 ; Kentucky Traction & Terminal Company v. Wilburn, 206 Ky. 510 , 267 S. W. 1090 .

1951Louisville & Nashville Railroad Co. v. Benke’s Administrator, 176 Ky. 259 , 195 S.W. 417 ; Kentucky Traction & Terminal Co. v., Wilburn, 206 Ky. 510 , 267 S.W. 1090, 1091 .

1938Braden’s Adm’x v. Liston, 258 Ky. 44 , 79 S. W. (2d) 241 ; Kentucky Traction & Terminal Company v. Wilburn, 206 Ky. 510 , 267 S. W. 1090 .

1948As stated in Hewitt’s Adm’r v. Central Truckaway System et al., 302 Ky. 459 , at page 464, 194 S. W. 2d 999 , at page 1001: “when the last clear chance rule makes its entry on the stage, all antecedent negligence of either party retires from the case” * * * *534 See also Braden’s Administratrix v. Liston, 258 Ky. 44 , 79 S. W. 2d 241 ; Weintraub v. Cincinnati N. & C.

1948As stated in Hewitt’s Adm’r v. Central Truckaway System et al., 302 Ky. 459 , at page 464, 194 S. W. 2d 999 , at page 1001: “when the last clear chance rule makes its entry on the stage, all antecedent negligence of either party retires from the case” * * * *534 See also Braden’s Administratrix v. Liston, 258 Ky. 44 , 79 S. W. 2d 241 ; Weintraub v. Cincinnati N. & C.

1975Also see Eades v. Stephenes, Ky., 302 S.W.2d 117 (1957).

1958The discussion there is approved in Eades v. Stephens, Ky., 302 S.W.2d 117, 119 , wherein it was said: “It was there pointed out that before a last clear chance instruction should be given, the evidence must show as a matter of fact defendant actually had a last clear chance to avoid the accident or to extricate plaintiff from the danger in which plaintiff’s own negligence had placed him.

1971Cassinelli v. Begley, Ky., 433 S.W.2d 651 (1968), Cf. Gaddie v. Evans, Ky., 394 S.W.2d 118 (1965).

1970Without undertaking an analysis of our many recent cases, we observe that the present case clearly is one for a last clear chance instruction within the authority of Meredith v. Crumpton, Ky., 434 S.W.2d 648 ; Nixon v. Morris, Ky., 433 S.W.2d 364 ; Cassinelli v. Begley, Ky., 433 S.W.2d 651 ; Marshall v. Merrifield, Ky., 431 S.W.2d 870 ; Payne v. Zapp, Ky., 431 S.W.2d 890 ; French v. Mozzali, Ky., 433 S.W.2d 122 ; Shea v. Bruner, Ky., 426 S.W.2d 482 ; Fenwick v. Daugherty, Ky., 418 S.W.2d 243 ; and Frank v. Silvers, Ky., 414 S.W.2d 887 .

1970Without undertaking an analysis of our many recent cases, we observe that the present case clearly is one for a last clear chance instruction within the authority of Meredith v. Crumpton, Ky., 434 S.W.2d 648 ; Nixon v. Morris, Ky., 433 S.W.2d 364 ; Cassinelli v. Begley, Ky., 433 S.W.2d 651 ; Marshall v. Merrifield, Ky., 431 S.W.2d 870 ; Payne v. Zapp, Ky., 431 S.W.2d 890 ; French v. Mozzali, Ky., 433 S.W.2d 122 ; Shea v. Bruner, Ky., 426 S.W.2d 482 ; Fenwick v. Daugherty, Ky., 418 S.W.2d 243 ; and Frank v. Silvers, Ky., 414 S.W.2d 887 .

1969See Payne v. Zapp, Ky., 431 S.W.2d 890 ; George v. Evans, Ky., 405 S.W.2d 285 ; Frank v. Silvers, Ky., 414 S.W.2d 887 ; Fenwick v. Daugherty, Ky., 418 S.W.2d 243 ; Shea v. Bruner, Ky., 426 S.W.2d 482 ; French v. Mozzali, Ky., 433 S.W.2d 122 ; and Nixon v. Morris, Ky., 433 S.W.2d 364 .

1959Whitesides Cab Co. v. Reed, Ky., 306 S.W.2d 249 ; Galloway v. Patterson, 312 Ky. 862 , 229 S.W.2d 960 .

1959Whitesides Cab Co. v. Reed, Ky., 306 S.W.2d 249 ; Galloway v. Patterson, 312 Ky. 862 , 229 S.W.2d 960 .

1948As stated in Hewitt’s Adm’r v. Central Truckaway System et al., 302 Ky. 459 , at page 464, 194 S. W. 2d 999 , at page 1001: “when the last clear chance rule makes its entry on the stage, all antecedent negligence of either party retires from the case” * * * *534 See also Braden’s Administratrix v. Liston, 258 Ky. 44 , 79 S. W. 2d 241 ; Weintraub v. Cincinnati N. & C.

1948As stated in Hewitt’s Adm’r v. Central Truckaway System et al., 302 Ky. 459 , at page 464, 194 S. W. 2d 999 , at page 1001: “when the last clear chance rule makes its entry on the stage, all antecedent negligence of either party retires from the case” * * * *534 See also Braden’s Administratrix v. Liston, 258 Ky. 44 , 79 S. W. 2d 241 ; Weintraub v. Cincinnati N. & C.

1985This conclusion is based on Justice Leibson’s statement in Hilen v. Hays, supra at 718 , that the comparative negligence doctrine “eliminates a windfall for either claimant or defendant as presently exists in our all-or-nothing situation where sometimes claims are barred by contributory negligence and sometimes claims are paid in full regardless of contributory negligence such as in cases involving last clear chance or defendant’s willful or wanton negligence.” (Emphasis added.) By this statement, we believe the majority of the Kentucky Supreme Court clearly indicated that they intended, by ad

1977L & N Railroad Company v. Vanderpool, Ky., 496 S.W.2d 349 (1973).

1975Beasley v. Standard Paving and Engineering Co., Inc., supra. In Young v. De Bord, Ky., 351 S.W.2d 502 , we said: “In applying the last clear chance doctrine to a given situation, the defendant must, as a matter of fact, have a last clear chance and not a speculative or a possible chance to avoid the accident. * * sfc tf Thus, possibility of avoidance is not the test but rather that the chance of avoidance was clear, plain, apparent, self-evident, distinct, manifest and unmistakable.

1974Inasmuch as Beasley was not helpless but merely inattentive, his right to recover under the last clear chance doctrine is governed by Section 480 of the Restatement of the Law of Torts, Second, as adopted by this Court in General Telephone Co. of Kentucky v. Yount, Ky., 482 S.W.2d 567 (1972).

1974General Telephone Company of Kentucky v. Yount, supra. Beasley was negligent as a matter of law and the lower court committed no error in directing a verdict for Standard.

1971Cassinelli v. Begley, Ky., 433 S.W.2d 651 (1968), Cf. Gaddie v. Evans, Ky., 394 S.W.2d 118 (1965).