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Last Clear Chance Cases Summarized By Injury Lawyer

This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Last Clear Chance. 

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Definition

1998 Williams v. Harrison, 255 Va. 272, 497 S.E.2d 467

Last clear chance applies in two situations: (1) injured party has negligently placed himself in position of peril from which he is physically unable to remove himself, and (2) injured party has negligently placed himself in position of peril from which he is physically able to remove himself but is unconscious of peril. In this wrongful death action where the decedent was exceeding the speed limit and driving on wrong side of the road when he was rear-ended by defendant who likewise was exceeding speed limit and on wrong side of road, last clear chance does not apply.

1988 Pack v. Doe, 236 Va. 323, 374 S.E.2d 22.

This doctrine applies in two instances: (1) Helpless plaintiff: Has negligently placed himself in position of peril from which he is physically unable to remove himself? (2) Inattentive plaintiff: Has negligently placed himself in position of peril from which he is physically able to remove himself but is unconscious of peril? In this case, plaintiff intoxicated, in drunken stupor, fell asleep on roadway and run over by motorist. This does not constitute physical incapacity; i.e., condition resulting from non-negligent, non-intentional natural causes such as seizure, heart attack.

1972 Vanlandingham v. Vanlandingham, 212 Va. 856, 188 S.E.2d 96.

In any accident, there comes a point in time when one party becomes helpless in that he cannot avoid accident. This is not what is meant by helpless plaintiff. It is only in those rare instances where plaintiff is physically incapacitated that we have helpless plaintiff.

1971 Simmers v. DePoy, 212 Va. 447, 184 S.E.2d 776.

Last clear chance applies in two situations: (1) helpless plaintiff and (2) inattentive plaintiff. In first situation, defendant is liable if he saw or should have seen plaintiff. In second situation, defendant is liable only if he actually saw plaintiff. In either case, defendant must have had time to avert accident.

1963 Smith v. Spradlin, 204 Va. 509, 132 S.E.2d 455.

Last clear chance applies: (1) where plaintiff has negligently placed himself in peril from which he is physically unable to remove himself; defendant is liable if he saw or should have seen him in time to avert accident by using reasonable care; and (2) where plaintiff has negligently placed himself in peril from which he is physically able to remove himself, but is unconscious of peril; defendant is liable only if he saw plaintiff and realized or should have realized his peril in time to avert accident by using reasonable care.

1955 Greear v. Noland Co., 197 Va. 233, 89 S.E.2d 49.

Where opportunity to avoid accident is as available to plaintiff as to defendant, then plaintiff’s negligence is not remote cause of accident but proximate cause. Where injured person has negligently placed himself in situation of peril from which he is physically unable to remove himself, defendant is liable if he saw or should have seen him in time to avert accident by using reasonable care. Doctrine does not supersede principle of contributory negligence; it allows plaintiff to recover only if his negligence was in fact not proximate cause, but only remote cause or condition of accident, and negligence of defendant was sole proximate cause.

1953 Craighead v. Sellers, 194 Va. 920, 76 S.E.2d 212.

In order for plaintiff to recover under this doctrine, he must prove: (1) that he was in situation of peril, of which he was unaware or from which he could not by exercise of reasonable care extricate himself; and that, (2) after his peril was discovered or ought to have been discovered, defendant had last clear chance to save him by exercise of ordinary care. Last clear chance is not applicable where negligence of plaintiff pedestrian continued up to moment of accident.

1952 Umberger v. Koop, 194 Va. 123, 72 S.E.2d 370.

Basis of doctrine is that in spite of prior negligence of plaintiff, subsequent negligence of defendant is sole proximate cause of accident. When acts of negligence are not concurrent, but one succeeds other by appreciable interval, person who has last clear chance to avoid harm and negligently fails to do so is chargeable with whole.

1952 Whichard v. Nee, 194 Va. 83, 72 S.E.2d 365.

Where defendant’s negligence was at most only concurrent with that of plaintiff, then last clear chance not applicable.

1952 Burton v. Oldfield, 194 Va. 43, 72 S.E.2d 357.

Burden is on plaintiff to show, by preponderance of evidence, that defendant negligent in what he did or failed to do after he discovered or should have discovered that plaintiff was in situation of helpless or unconscious peril. Last clear chance presupposes time for effective action. Doctrine of last clear chance does not supersede defense of contributory negligence.

1951 Keatts v. Shelton, 191 Va. 758, 63 S.E.2d 10.

Defendant’s vehicle struck plaintiff while plaintiff was crossing highway. It does not save plaintiff from bar of his own negligence unless it is shown that after situation of peril created by his previous negligence was discovered, or ought to have been discovered, defendant had last clear chance to prevent accident by using ordinary care.

1949 Anderson v. Payne, 189 Va. 712, 54 S.E.2d 82.

Burden is on plaintiff to show, by preponderance of evidence, that he was in situation of peril, of which he was unconscious or from which he could not by exercise of reasonable care extricate himself, and that after his peril was discovered, or ought to have been discovered, defendant had last clear chance to save him by exercise of ordinary care.

1948 Hooker v. Hancock, 188 Va. 345, 49 S.E.2d 711.

To justify instruction on this principle, it must be shown that plaintiff was inattentive to peril into which he had placed himself, and that after defendant saw him and realized or should have realized, his inattentiveness, defendant failed to use reasonable care to avoid collision. Facts do not justify instruction in this case.

1948 Stark v. Hubbard, 187 Va. 820, 48 S.E.2d 216.

Doctrine presupposes time for effective action and is not applicable to sudden emergency; not applicable where negligence of plaintiff and defendant continues down to time of accident.

1947 Stuart v. Coates, 186 Va. 227, 42 S.E.2d 311.

When negligence of plaintiff continues as proximate cause, then this is fatal to plaintiff’s case under last clear chance. If plaintiff had last clear chance to avoid accident and failed to do so, then plaintiff may not recover. For doctrine to apply, negligence of plaintiff must become remote cause prior to accident. Even though negligence of plaintiff continues to moment of injury, if defendant knew or should have known of danger to plaintiff and had last clear chance, then plaintiff may recover. Last clear chance defense presupposes negligence of plaintiff and defendant.

1946 Harris Motor Lines v. Green, 184 Va. 984, 37 S.E.2d 4.

Where two parties are both guilty of continuous acts of negligence down to time of accident, last clear chance not applicable; otherwise, there would be nothing left of law of contributory negligence or concurring negligence.

1945 Herbert v. Stephenson, 184 Va. 457, 35 S.E.2d 753.

Doctrine applies where: (1) peril of plaintiff is known or ought to have been known to defendant, and (2) defendant owes to plaintiff duty to keep reasonably careful lookout commensurate with nature of agency he is using or operating, and nature of locality, and by exercise of ordinary care ought to have seen or known of plaintiff’s perilous situation in time to have avoided injury by exercise of reasonable care.

1943 Willard Stores, Inc. v. Cornell, 181 Va. 143, 23 S.E.2d 761.

This doctrine does not impose duty of prevision. Instead, each person has right to assume that normal person in situation requiring exercise of prudence will use his faculties in time to prevent his injury. This defense clearly does not supersede defense of contributory negligence.

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Miscellaneous

1974 James v. The Union Mission, 215 Va. 331, 210 S.E.2d 142.

Plaintiff’s vehicle stalled across highway; vehicle driven by defendant’s driver struck plaintiff. Not error to refuse plaintiff’s offered instruction on last clear chance.

1952 Manhattan For Hire Car Corp. v. O’Connell, 194 Va. 398, 73 S.E.2d 410.

Last clear chance does not supersede defense of contributory negligence.

1952 Messick v. Barham, 194 Va. 382, 73 S.E.2d 530.

Last clear chance instruction must be premised on evidence of contributory negligence of plaintiff.

1952 Burton v. Oldfield, 194 Va. 43, 72 S.E.2d 357.

This doctrine is to be applied with caution.

1951 Atlantic Coast Line R. R. v. Withers, 192 Va. 493, 65 S.E.2d 654.

Defendant offered last clear chance instruction against co-defendant. Court did not pass on propriety of such.

1950 Frazier v. Conner, 191 Va. 481, 61 S.E.2d 880.

Intersection collision. Defendant’s car unexpectedly entered highway from secondary road. Evidence plainly showed this was case of negligence either on part of plaintiff, defendant, or both. Last clear chance not in question.

1949 Anderson v. Payne, 189 Va. 712, 54 S.E.2d 82.

Plaintiff pedestrian was struck in rear by defendant’s automobile on right side of road. If plaintiff had equal chance with defendant to avoid accident, or last clear chance to do so, plaintiff cannot recover.

1947 Stuart v. Coates, 186 Va. 227, 42 S.E.2d 311.

Instruction presenting last clear chance is usually based on plaintiff’s version of accident. Last clear chance instruction given at defendant’s request, stating that if plaintiff had last clear chance to avoid accident and did not do so, then verdict must be for defendant.

1943 American Tobacco Co. v. Harrison, 181 Va. 800, 27 S.E.2d 181.

Injection of last clear chance doctrine into infant plaintiff case, where plaintiff not capable of contributory negligence, was only harmless error in this instance.

1943 Orndorff v. Howell, 181 Va. 383, 25 S.E.2d 327.

Pedestrian crossing street. Last clear chance instruction given.

1943 Willard Stores, Inc. v. Cornell, 181 Va. 143, 23 S.E.2d 761.

Doctrine of last clear chance applies to both plaintiff and defendant.

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No Opportunity to Avoid Injury

1981 McManama v. Wilhelm, 222 Va. 335, 281 S.E.2d 813.

Doctrine of last clear chance was not applicable where there was no evidence that decedent pedestrian was helpless or that defendant motorist had last clear chance to avoid him.

1964 Eisenhower v. Jeter, 205 Va. 159, 135 S.E.2d 786.

Plaintiff alleged he was struck in crosswalk by motorist. Last clear chance not applicable. Last clear chance only applies where plaintiff has negligently placed himself in position of danger of which he is unaware and from which he is unable to extricate himself.

1963 Smith v. Spradlin, 204 Va. 509, 132 S.E.2d 455.

Last clear chance implies thought, appreciation, mental direction and lapse of sufficient time to effectively act on impulse to save another from injury. Defendant was 47 feet away when he saw plaintiff in his position of peril and did not have sufficient time to stop; last clear chance not applicable.

1959 Jones v. Aluminum Window & Door Corp., 201 Va. 283, 110 S.E.2d 531.

Collision between truck and bicycle. Defendant did not see bicyclist in time to avoid accident; therefore, last clear chance not applicable. If testimony of plaintiff is to be believed, then he was free of negligence and last clear chance not applicable.

1959 Norfolk & W. Ry. v. Hagy, 201 Va. 183, 110 S.E.2d 177.

Railroad crossing accident. Defendant had right to assume that plaintiff would stop. No showing that defendant had enough time to stop when he realized plaintiff’s peril.

1958 Cook v. Shoulder, 200 Va. 281, 105 S.E.2d 860.

Pedestrian struck while crossing; never saw defendant’s car. Last clear chance doctrine allows plaintiff to recover only if his negligence was only remote cause of accident and negligence of defendant was sole proximate cause. Where opportunity to avoid accident is as available to plaintiff as to defendant, then plaintiff’s negligence is not remote cause but continues as proximate cause. Last clear chance not applicable in this case.

1957 Davis v. Scarborough, 199 Va. 100, 97 S.E.2d 731.

Decedent stopped vehicle on road to change tire. Defendant had insufficient time to stop; therefore, last clear chance not applicable.

1956 Brown v. Vinson, 198 Va. 495, 95 S.E.2d 138.

Where plaintiffs negligence is ongoing up to time of accident in that he is driving on wrong side of road, then there is no last clear chance for defendant to avoid accident.

1955 Hodgson v. McCall, 197 Va. 52, 87 S.E.2d 791.

Pedestrian struck between intersections. Last clear chance should not apply when means of avoiding accident are equally available to plaintiff as to defendant.

1955 Hopson v. Goolsby, 196 Va. 832, 86 S.E.2d 149.

Pedestrian struck; did not maintain proper lookout. Where opportunity to avoid accident is as available to plaintiff as to defendant, then plaintiff’s negligence is not remote cause but continues as proximate cause.

1955 Marshall v. Shaw, 196 Va. 678, 85 S.E.2d 223.

Pedestrian struck. Neither party’s evidence showed plaintiff in position of peril with defendant having opportunity to avoid accident.

1953 Laubach v. Howell, 194 Va. 670, 74 S.E.2d 794.

Bike rider turned left in front of defendant. Last clear chance presupposes appreciable interval of time between prior negligence of plaintiff and subsequent negligence of defendant.

1952 Bonich v. Waite, 194 Va. 374, 73 S.E.2d 389.

Where motor vehicle stalls on side of road and operator stands in road while oncoming car is approaching and he is aware of oncoming car and there is no evidence that defendant saw or should have seen that plaintiff was in position of peril, then doctrine of last clear chance is not applicable.

1952 Hardiman v. Dyson, 194 Va. 116, 72 S.E.2d 361.

Plaintiff’s decedent walking in right lane of traffic when struck. Doctrine of last clear chance presupposes time for effective action and is not applicable when time is too short to avoid accident by exercising reasonable care.

1951 Keatts v. Shelton, 191 Va. 758, 63 S.E.2d 10.

Defendant’s vehicle struck plaintiff while she was crossing highway. Judgment for plaintiff reversed and remanded for new trial. Doctrine of last clear chance presupposes that there must have been time and opportunity for effective action by defendant, and burden is on plaintiff to establish this affirmatively by preponderance of evidence.

1950 Oliver v. Forsyth, 190 Va. 710, 58 S.E.2d 49.

Defendant must have last clear chance to avoid accident by exercise of ordinary care. If plaintiff is not in position of peril until he drives into defendant’s lane and at that point it is too late for defendant to stop, then last clear chance is not applicable.

1949 Lanier v. Johnson, 190 Va. 1, 55 S.E.2d 442.

Plaintiff’s decedent turned in front of defendant. Last clear chance will save plaintiff from bar of his own negligence if he has shown that after situation of peril of plaintiff was or ought to have been discovered, defendant had last clear chance to avoid accident by using ordinary care. If opportunity to avoid accident was as available to plaintiff as to defendant, then defendant is not liable.

1949 Chesapeake & O. Ry. v. Marshall, 189 Va. 729, 54 S.E.2d 90.

Plaintiff’s decedent struck and killed by railroad yard engine. Decedent jumped out of warehouse near tracks suddenly and without warning. No time to avoid injury. Contributory negligence of plaintiff was direct and proximate result of accident. Doctrine of last clear chance not applicable.

1949 Norfolk & W. Ry. v. Epling, 189 Va. 551, 53 S.E.2d 817.

Train collides with truck at crossing. Last clear chance not applicable as engineer did not have enough time to stop under circumstances.

1948 DeMuth v. Curtiss, 188 Va. 249, 49 S.E.2d 250.

Pedestrian struck. Burden of proof on plaintiff to establish that plaintiff was in position of danger at time that defendant should have discovered him to avoid accident.

1948 Stark v. Hubbard, 187 Va. 820, 48 S.E.2d 216.

Doctrine of last clear chance is not applicable where pedestrian who sees oncoming car and misjudges its speed and distance is subsequently struck by automobile. See dissent for contrary opinion.

1948 Nichols v. Southern Ry., 187 Va. 89, 45 S.E.2d 913.

Assumption that person in place of safety will remain in that place of safety until danger has passed is proper one. Where that is applicable and defendant has no actual knowledge of plaintiff leaving place of safety, then last clear chance doctrine is not applicable. Mere possibility that defendant had last clear chance to avoid accident is not enough.

1947 Jenkins v. Johnson, 186 Va. 191, 42 S.E.2d 319.

Pedestrian struck. To invoke last clear chance, plaintiff must show that defendant had sufficient time and opportunity to avoid injury after he should have discovered plaintiff’s danger from his own negligence. There must be appreciable difference in time between earlier negligence of plaintiff and later negligence of defendant and last clear chance to avoid accident.

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Opportunity to Avoid Injury

1964 Turner v. Norfolk S. Ry., 205 Va. 691, 139 S.E.2d 68.

Decedent sitting on railroad track evidently having seizure. Last clear chance applies.

1954 Conrad v. Thompson, 195 Va. 714, 80 S.E.2d 561.

Plaintiff’s decedent, a pedestrian, was struck and killed on three-lane highway by vehicle operated by defendant. Since evidence showed and defendant admitted that she saw deceased in position of imminent danger of which deceased was unaware and had time to avoid striking him, no error in instructing jury on doctrine of last clear chance.

1951 Lloyd v. Andrews, 192 Va. 41, 63 S.E.2d 734.

Pedestrian struck either on roadway or shoulder. Last clear chance instruction given.

1950 Fein v. Wade, 191 Va. 203, 61 S.E.2d 29.

Decedent pedestrian was struck by automobile and killed. Decedent was walking on travelled portion of highway facing traffic. Under circumstances, doctrine of last clear chance is wholly inapplicable.

1949 Virginia Transit Co. v. Owens, 190 Va. 76, 55 S.E.2d 422.

If motorman had seen deceased approaching tracks and realized in time to stop car that plaintiff was oblivious and would remain oblivious to approaching danger and would walk in front of car, then doctrine of last clear chance would apply.

1948 Washington & O.D.R.R. v. Taylor, 188 Va. 458, 50 S.E.2d 415.

Court seems to apply last clear chance doctrine in this case where plaintiff was lying on tracks in drunken stupor.

1948 Crouse v. Pugh, 188 Va. 156, 49 S.E.2d 421.

Where driver has no explanation of why he did not see pedestrian, question of last clear chance is presented.

1948 Voight v. Reber, 187 Va. 157, 46 S.E.2d 15.

Since there was evidence of contributory negligence and that defendant had opportunity to avoid accident, defense was applicable. Defendant’s stalled vehicle rear-ended by plaintiff.

1946 Slate v. Saul, 185 Va. 700, 40 S.E.2d 171.

Where defendant saw plaintiff and had opportunity to save him and failed to do so, this would be sufficient to carry question of last clear chance to jury.

1946 Gray v. Van Zaig, 185 Va. 7, 37 S.E.2d 751.

Plaintiff entered intersection before defendant. When he saw defendant approaching and would not stop, plaintiff then stopped in intersection. Defendant still had ample opportunity to stop but did not; last clear chance applies.

1946 Nelson v. Dayton, 184 Va. 754, 36 S.E.2d 535.

Where defendant is required by law to keep proper lookout, test is not whether he actually saw plaintiff in time to have saved him but whether he could have seen him in time to have avoided injury by exercising ordinary care, and failed to do so.

1945 Herbert v. Stephenson, 184 Va. 457, 35 S.E.2d 753.

Pedestrian struck. Conceding continuing negligence of plaintiff in walking on wrong side of highway, still he can recover if defendant had last clear chance to avert injury and failed to avail himself of it.

1944 Clay v. Bishop, 182 Va. 746, 30 S.E.2d 585.

Plaintiff leading horse on right side of road when horse struck by defendant. Last clear chance is applicable.