*1 application. no contemplates doctrine has That doctrine party placed perilous that after the one has himself in a part there is a clear chance on the of the other party to accident. In view of the short time which elapsed warning given shout to before car, he collided with the and the fact that the shout came complete suprise her, as a and the swift movements of during time, events there was no clear chance afforded her to avoid the I accident. believe that this is case where reasonable minds must all conclude that defendant did not accident, have a clear chance to avoid the and therefore that phase the court should not submit the case jury.
LARSON, J.,C. dissents. v. et al.
GRAHAM JOHNSON 17, September (172 665.) No. 6868. Decided 1946. P. 2d 366, *2 Hanson, Hanson, Rice, and Steward M. D.
John Willard appellant. City, for all of Salt Cannon, Budge Edwin B. both Salt R. Jesse S. *3 respondents. City, Lake for
WOLFE, Justice. counsel, apply by for
Defendants, additional reinforced contending in court is rehearing that the of this a the doctrine of last misconceived! (1) in that it has error chance; for (2) had Darlene been headed that him away from when to turn Gary and started physical a him, have it would been 20 feet behind in the turn and ended made the to have impossibility in a parallel curb to the did, position she 38 feet with car of distance north and south Darlene had jury that determined long; (3) if the and way of skirting west side the a clear did not have law that she south, hold in we must of the impact, of the shortness because the questions in this unique difficult and of the Because time. the conten order briefly in reverse consider case we shall Considering respondents. the brief of the tions made following facts: first, emphasizes the counsel contention greatest Darlene’s evidence, distance the the under That run Gary started have travelled could automobile feet, as mentioned 23 to rest was came the car until great- time, during period the of the same opinion; that our gone est distance could have was 20 feet which would traveling car approxi indicate that and the at mately speed; figuring the same the rate car (and per by hour as miles as testified to Darlene she was speed) who the the one estimated the total time which elapsed the run between time started to and the time impact the occurred was one and one-half seconds. This construing Gary. the most evidence favorable We law, think we should as matter of as did Mr. Justice dissenting time, partially opinion, inWade his that such case, under the circumstances of is too short to thrust upon avoiding responsibility the impact. defendant of Darlene, seconds, in this one and one-half would have had cognizant Gary’s precipitate action, to become steps have had to react to it have taken necessary upon party to avoid it. one thrusts When another the onus avoiding entirely an accident which was due to the fact party fairly rapid process placing first is in the path himself in party, of a car driven the second court, permits before to determine whether the party second accident, avoided must be enough reasonably sure there was time for the is, minds, so find. Where situation to reasonable party doubtful as to whether the second had time to avoid it, given jury; otherwise, matter not be are, we Sadleir, said the case of Thomas v. 108 Utah 552, 112, 115, grave danger permitting 162 P. 2d really at *4 “fault by to shift the blame for the accident on the other accentuation duty of negligence.” the other’s to avoid the effect of the first one’s given above, the hereby
For reasons we modify our opinion in this case to the extent of that the lower case, court on the retrial this if evidence is as it was on trial, first should instruct that it if concludes that moving Darlene was south well over to the west side Gary run, Lake Street at time started to it must hold that she had no clear chance to avoid the Her accident. opportunity pos- to avoid the accident must not be a mere opportunity. sibility appear a clear And it must to the posi- court that the situation was such when the relative parties changing rapidity tions of the were with fair to the element doubt as whether one of had them opportunity duty to avoid the accident and therefore to a great. do so must not be coming supposition
Two: to Now the first to the route Street, traveling which Darlene took while on Gary it with is asserted that if she were in line she up not have turned from that route and ended nearly parallel close and in a north curb feet; south distance of 38 that such have would been might physical impossibility. case, If such is the general the first route Darlene have which opinion, taken and is out our which set have to be already discarded. And since have we held in this did Darlene not have clear chance ac coming cident if was down the she west side of Lake Gary, not in line with it would that we should affirm result the lower In the we that the for court. said choice only lay among possible and reasonable combina tions of evidence. Darlene Gary
in line if the left side her car in line with fact, imposed with him. In all the duties on Darlene and consequences all the which she if was bound knowing perform duty, was she omitted her approach, would situa unaware of be attendant on a would tion where her line of travel come so close person reasonably apprehensive as to make that she though her continued travel strike even going in the she would have skirted direction was Taking feet wide. him. Half of street is evidence plaintiff argument, most favorable to we put Gary feet line. west of center The car 17% 3% long and at least 5 feet wide. If left or east side right side, Gary, of the car in line with its west Gary, 20 feet behind would be feet from when it was *5 370 knowledge are to
curb. We unable from our own long, right feet car side of which was feet from 17% curb, right position could not in 38 feet turn and end in a right right which its front in wheel was feet and its rear impossible, was 3 feet from the wheel curb. If such be it have been shown. In this case we do not receive thorough any really analysis posi the benefit of of various tions of car which be taken from the evidence. to That was left for us do. But even if the defendant physically impossible it show was turn make the position in 38 feet of travel distance and end this did, jury. car the case could not taken from the The 3% Gary placed himself, west of the center line where front 20 feet behind him where Jack testified the car was yelled, Donald the distance when the front of the car was driveway, from the north side of Jack’s all estimates. slight in one A or more of these estimates variation permit the car come to it did even if that could not be done in 38 foot north and The distance. up the whole sizes evidence and from it determines really happen. it what thinks did It is not the slave of stated they it distances when knows that are That estimates. making would be man for the Sabbath rather than Hence, reject for the man. we must Sabbath conten controlling tion defendant. fact that would determine was whether Darlene was line or in line with and if she must have made the turn to end when she did and distances, regardless estimate, must actually permit accomplish as to such turn. interesting come Three: We now to the most most important part of this decision —what we stated in the first unique application awas “rather of the so-called Certainly doctrine.” a like situation frequently it occurred this case variations of would not thought explicit While we especially occur. possible the doctrine reasonable fact con- figurations jury might evidence, which the take from the *6 apparent fully from the briefs that counsel has not under- reasoning of the stood back decision. For that reason and for the that we not reason do want the to be applicable, used in situations where it would be not we now clarify endeavor not if it is already clear.
Defendants we have misconceived the doctrine of last clear chance. That doctrine like all others development. say: has shown Defendants plaintiff (or person desiring “The to invoke the doctrine [of chance]) position peril.” must be in a of imminent That is not the statement of best what defendants mean. may peril It imminent, defeat If the may itself. is too there be no clear chance to avoid the accident. The situation must plaintiff position peril such that inis from defend- operation ant’s plaintiff either because is inattentive or un- danger negligent, aware of and thus or because he cannot extricate peril himself from a unto which his negligence projected grown boys horseplay him. Two at who street, chasing run into the other, unaware that they approaching automobile, certainly negligent. are are away If the car ais half block when the driver sees or should racing boys him, may see the duty toward he not have a stop, first, at duty timely warning. least at to sound a duty The prudent person last clear chance is to do what a oppor- would have done to avoid the accident had he had the tunity, be, whatever that would after he did or should have appreciated peril peril. sheep other’s or If track, sounding may are massed on a railroad a whistle do good. duty or, little The there would be to slow down if neces- sary stop. boys The two in the illustration not have been peril point in imminent at the duty at which the arose on part warning. of the driver of the car to sound a But increasing danger boys must or should have appreciated by the driver and there must have been reason- ground for the boys able driver of the car to realize that the negligent continue in their and inattentive suddenly directly boys If the ran out in front of
career. car, peril applica- have been too imminent for an of the last clear chance tion doctrine. cognizant the instant case: Darlene was
To revert ap Gary’s and his unawareness that she was inattention being negligent proaching. he He was where was. She put ample opportunity to warn him and him on had timely jury could To do this find was attention. plaintiff spite duty she owed to the even which negligence his and due to situation. of his perform duty. her What must she find that she omitted consequence a natural omission? She *7 seemingly placing Gary if she is must inspired increasing may reasonably peril one auto some be response the stimulus matically to warn him and that safety warning, naturally he would or seek of that running. called the automatic chain What' warning. timely to sound! a Noth from her omission stems superseding independent ing in this automatic chain is exposing the chain we are is where The situation cause. that which the consequences due to failure to do dictates, automatic or semi-automatic —a causa is chance “Squibb” case, stemming in the well known tion chain as negligence of the defendant which was an the act of from prudent person would have done to what a to do omission opportunity there was a clear to do the accident when act of have been defendant’s That omission so. plaintiff’s negligence on one level and the on is continuing negligence plaintiff’s level. The another controlling defendant, oper who was and but static. danger, ating agency of had the clear negligence and did the effect of other’s to avoid negligence and it came after the That was her not do SO'. negligence fixed. had become known and plaintiff’s rehearing modified as is denied but above A j ury have been instructed out, That the to wit: set driving the evidence that Darlene was from if it found not in line or her car response line with and had run in to Donald’s warning, she, D'arlene, would not have had a clear chance started to run to avoid the accident and there- negligent. fore reason she should not for that have been held WADE, JJ., concur. McDONOUGH LARSON, J., original C. concurs the modification of the denying rehearing. and! in the order PRATT, J., participating. not
BOZIEVICH v. et SLECHTA al. February 16, 1946. (166 239.) No. 6865. Decided P. 2d