Citation. Fuller v. Illinois C. R. Co., 56 So. 783, 100 Miss. 705
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Brief Fact Summary.
Illinois Central R.R.’s (Defendant’s) train struck a man’s wagon and the driver was killed instantly. Defendant saw the wagon on the track, 660 feet away. He could have stopped, but did not. Plaintiff claims that Defendant had the last clear chance to avoid the accident.
Synopsis of Rule of Law.
The party who last has a clear opportunity of avoiding the accident, notwithstanding the negligence of his opponent, is considered solely responsible for it.
A man, over seventy-years-old, was riding his one-horse wagon over a straight stretch of railroad track. Plaintiff had his head down and did not stop to look or listen for Defendant’s oncoming train. Defendant’s train was late and was traveling faster than usual. Plaintiff could see Defendant in plain view, on the track, about 660 feet away. Defendant could have stopped the light train within 200 feet. However, Defendant did not slow down. He blew his whistle twenty seconds before impact. Plaintiff was killed instantly. Plaintiff sued Defendant for negligence. In response to Defendant’s claim of contributory negligence, Plaintiff argued that Defendant had the last clear chance to avoid the accident. The trial court returned a verdict for Defendant. Plaintiff appealed.
Is Defendant, who has the last clear chance to avoid an accident, liable for the accident if he does not avoid it despite the negligence of his victim?
Yes. Reversed and remanded.
* All that is required of Defendant, as to Plaintiff, a trespasser, is the abstention from wanton or willful injury or gross negligence. Contributory negligence is not a defense for an injury that is willfully, wantonly, or recklessly done.
* The contributory negligence of the party injured will not defeat the action for negligence if it is shown that Defendant might, by the exercise of reasonable care and prudence, have avoided the consequence of the injured party’s negligence. This principle is known as the “last clear chance doctrine.” It was first used in the case of Davies v. Mann. In Davies, the Plaintiff permitted his donkey to graze on a public highway. The Defendant’s wagon ran over the donkey and killed it. Whether or not the donkey was wrongfully on the highway, the Defendant could have avoided the donkey by proper care. In Davies, the Defendant had the last clear chance to avoid hitting the donkey. It did not matter if Plaintiff was also negligent, because Defendant had the last clear chance to avoid the accident.
* In this case, like in Davies, Defendant had the last clear chance to avoid the accident. Plaintiff was in a wagon, and Defendant could have seen that he was going to cross the track, and could only with difficulty extricate himself from his perilous position.
This case introduces the student to the last clear chance doctrine. For example, if a driver, while driving his car, sees a pedestrian cross the street in gross negligence, there is a duty upon that driver to avoid hitting the pedestrian. The driver cannot hit the pedestrian and then escape an award for damages because pedestrian was negligent. Driver saw the pedestrian, could have avoided him, and should have avoided him but he did not. Pedestrian is entitled to collect from driver irrespective of his contributory negligence.