out contributory negligence. That is, contributory negligence would be immaterial. But what the court probably meant was that if, after the defendant had observed the peril to which the plaintiff's animal was subjected, he still had time, by refraining from further negligence and by using due care henceforth, to avoid the injury, then the prior negligence of the plaintiff was not to be deemed as contributing to the result, because it was in no just sense the cause of the injury which followed. Notwithstanding the plaintiff's prior negligence, the later negligence of the defendant when he had a chance to avoid all injury by the use of due care would be the sole and proximate cause of the harm. In that event the prior negligence of the plaintiff would be only a condition "but for" which the injury would not have happened, and not a cause of its occurrence. This argument seems entirely sound. This doctrine is called the rule of the "Last Clear Chance." It is noticeable that the rule is not to be applied to relieve one who has been negligent from responsibility to a third person who has not been negligent and who has been injured by the concurring negligence of two others.

71. Extent of adoption of the rule.-The report of the case of Davies v. Mann does not affirmatively show that Mann's servant observed the ass in time to avoid injuring him. Some courts have therefore assumed that this doctrine does not require that a defendant should actually have known of a plaintiff's peril in time to avoid injuring him, and have also applied the rule where the defendant did not

98

know of the plaintiff's peril, but ought to have known of it by the exercise of due care. This doctrine is stated most frequently by these courts in cases involving injuries from the operation of trains. Such an application of the rule does totally overturn the whole doctrine of contributory negligence," for it penalizes the second negligence simply because it is last in time and disregards the first simply because it was first. Some courts, observing that the rule conflicts with the doctrine of contributory negligence in an instance of this kind, have assumed that it does so equally in all instances, and seem to refuse to follow the doctrine at all. However, the rule of Davies v. Mann, as explained in § 69, is the law of England and of the overwhelming bulk of American states. Both the broader view and the view that rejects the last clear chance doctrine are in the minority.

72. The rule applied.-The question of the applicability of the rule may evidently arise in the four following situations: (1) where the plaintiff was absent and the defendant present at the time of the infliction of the harm; (2) where neither was present; (3) where the defendant was absent and the plaintiff was present; (4) where both were present. The first is illustrated by the case of Davies v. Mann. If Mann's servant had gotten off the vehicle and had

98 Hutchinson v. St. Louis & M. R. R., 88 Mo. App. 376; Pickett v. Wilmington R. R., 117 N. C. 616, 23 S. E. 264. It will be found that such courts treat plaintiff's negligence as antecedent and hence regard it as a condition rather than a cause.

99 Compare C. B. & Q. R. R. v. Lilley, 93 N. W. 1012, and Jones v. Charleston & W. C. Ry. Co., 61 S. C. 556, 39 S. E. 758.

1 Northern Pac. Ry. v. Jones, 144 Fed. 47.

allowed it to go far ahead of him unattended instead, these facts would illustrate the second. If the plaintiff had been present in charge of the ass while it grazed, and if the defendant had left the vehicle and allowed it to go far ahead of him unattended, the third case would be presented; and if the plaintiff had been thus present and the servant had driven carelessly and had thereby run into the animal, we would have the fourth situation.

73. Same subject-Further applications of the rule. In the second situation it is evident that neither would have any greater opportunity than the other to avert the harm. Neither has the "last clear chance" and each, as a plaintiff against the other, would be barred by his own contributory negligence."

In the third situation, if the keeper of the ass saw the unattended team coming down the hill and had time to take the ass out of harm's way and did not, his negligence under those circumstances would bar him if the ass were hurt, and would make him liable to Mann if the vehicle were overturned and injured. If he did not have clear time to take the ass out of the way although he were close at hand, neither could recover against the other, because each was contributorily negligent. If the keeper were asleep or inattentive and did not notice the unattended team, it would not seem that he had any greater opportunity than the driver had who was

2 Stiles v. Geesey, 71 Pa. St. 439.

3 Compare Radley v. L. & N. W. Ry. Co., L. R. 1. App. Cas. 754 (Eng.), had the parties been reversed.

4 Butterfield v. Forrester, 11 East 60 (Eng.).

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coming on behind to avert the harm. Each seems to have had the same chance as the other, and therefore each should be barred. However, this situation might be decided unfavorably to the keeper in some courts under the reasoning set out in § 66.o

74. Same subject-The rule applied. If both parties were present and each observed the other, as in the fourth situation, it is usually difficult to see how either had any better chance than the other to avert the harm. However, if one had control of the situation and knew of the other's negligence, it would seem that that knowledge and control throws on him a greater duty of care than he would otherwise be under. If he apprehended the situation and did actually have control of it, and the other did not, his is the last clear chance. He is thus liable to the other for any harm he inflicts and is barred by his own negligence if he sustains harm himself.s

75. Care when danger imminent.-The foregoing doctrine shows that another, by his negligent conduct, may actually impose on one who knows of it, an increased degree of attention and watchfulness, for a reasonably prudent and careful man will increase his circumspection in proportion as a danger becomes imminent. One who knows that another is negligent, cannot proceed as though the other were

O'Keefe v. Chicago, R. I. & P. R. R. Co., 32 Iowa 467.

See note to Bogan v. Carolina Central R. R., in 55 L. R. A., pp. 418-465. Dyerson v. U. P. Ry. Co., 74 Kan. 528, 87 Pac. 680. Plaintiff attempted to cross a track without looking and was struck by a locomotive on which the engineer was keeping no lookout.

s Tuff v. Warman, 5 C. B. (N. S.) 573 (Eng.).

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acting carefully. He must adjust his conduct to the circumstances and to dangers which he knows to exist. Due care when a peril is impending is a different thing from due care when no danger threatens. At least this is so when one has time to act or where he enters upon a course of action with knowledge of the dangers accompanying it. This is equally true when one is sought to be held as a defendant and when it is claimed that he is barred by contributory negligence. Thus, the more rickety the sidewalk, the more gingerly must one pick his way across it. The more crowded the street, the more circumspect must one's conduct become in crossing. And this circumspection must increase still further in proportion as the drivers of the vehicles are observed to be inattentive, at least so long as their conduct does not involve an intentional harm.10

This will be found to be true in all situations, excepting in those in which the peril comes upon one so suddenly and unexpectedly that he has no time to reflect before he acts. A man is not expected to act instinctively, in an emergency, with the same judgment as he does when his act is deliberate and when he has time for reflection. Not even the reasonably prudent person can, in such circumstances, act with the ability he is presumed to possess.

11

76. Care when danger possible but not imminent. -As the imminency of peril increases the requisite degree of circumspection, so, as the peril fades toward

9 Zimmerman v. H. & St. J. R. R., 71 Mo. 476.

10 Hays v. Gainesville St. Ry. Co., 70 Tex. 602, 8 S. W. 491.

11 We have observed that such conduct is not an intervening cause. Compare § 19.