Alternative Rules for Determining Tort Liability
Coke's Institutes of the Law, No. 2, Series Editors: Amanda J. Owens & Charles K. Rowley
Last Clear Chance
The courts developed several theories to try to soften the impact of the contributory negligence rule. The Mississippi case of Fuller v. Illinois Central R.R., (1911) is an example of the last clear chance doctrine. In this case the plaintiff used a dirt track which crossed a railway line to get to his home. At the time of the accident the train was half an hour late, and so was running much faster than usual. The train gave its usual signal nine hundred feet from the crossing that alerted the train station further down the track of its imminent arrival. Almost immediately afterwards, the plaintiff, over seventy years old, began to cross the tracks in his horse and cart. He had looked neither left nor right and was killed instantly. Although the court believed the plaintiff was contributorily negligent, it found for the plaintiff. The court believed that the circumstances of the case showed the defendant acted in a willful, wanton, reckless manner with gross misconduct. If the defendant had exercised reasonable care and prudence, the railroad could have avoided the accident. The defendants had the last clear chance to avoid the accident but did not act upon it.
The last clear chance doctrine was examined again in Kumkumian v. City of New York, (1953) when a man was killed on the New York subway railroad tracks. Kumkumian walked into a restricted access tunnel and was lying on the railroad tracks when a train hit him. The train came to an emergency stop. The driver reset the brakes and started off again. This procedure was repeated again. After the third stop, the driver and conductor inspected the tracks and found Kumkumian's body. The evidence showed that if they had inspected underneath the train earlier, Kumkumian would have lived. Despite Kumkumian's contributory negligence in walking down the tunnel and lying on the train tracks, the doctrine of last clear chance applied. The motorman and conductor were negligent in twice disregarding the emergency equipment. The court reasoned that the defendant does not need to have precise knowledge of an impending danger. If there is proof to support an inference that someone is in peril then the defendant should act upon that inference. The conductor and driver had sufficient experience to understand the implications of the activation of the automatic brake system but they did not take the precautions of a reasonable man. This indifference to life constituted negligence that negated the effect of Kumkumian's initial act of contributory negligence.
|
...