THE DOCTRINE OF LAST CLEAR CHANCE*
The controversial doctrine of last clear chance appears to be passing
out of existence. Taking its place in the law of torts are new doctrines
which are better adapted to changes in our society. This conclusion can
be sustained, it is believed, by an examination of the doctrine's present
status in our courts and by an analysis of the theories behind the doctrine.
The celebrated "Donkey 4Case" of Davies v. Mann' illustrates how the
doctrine is applied. This case, thought to be the origin of the doctrine
of last dear chance, was decided in England in 1842. The plaintiff
shackled the forefeet of his donkey and left it on the highway. Subsequently, the defendant came past, traveling a short distance behind his
wagon team "at smartest pace." Because of the defendant's negligence,
the wagon team ran over the donkey and killed it. It was held that the
defendant was liable, for even though the accident would not have happened but for plaintiff's leaving his donkey on the highway so fettered
as to prevent its getting out of the way of carriages, the defendant, by
the use of care and prudence, had the last dear opportunity to avoid
the danger.2 The court concluded that "though the act of the plaintiff
might be illegal," still if the accident was caused by defendant's improper
conduct, and the defendant could with proper care avoid the accident,
plaintiff may recover. Or, to express it more succinctly, "When an accident happens through the combined negligence of two persons, he alone
is liable to the other who had the last opportunity of avoiding the
accident by reasonable care."'
The doctrine has a variety of names in addition to last clear chance.
In some jurisdictions it is referred to as the humanitarian doctrine;' in
others it is known as the doctrine of discovered peril.' Some jurisdictions
call it the doctrine of discovered negligence; some call it the doctrine of
subsequent negligence." Still others refer to it as the doctrine of superven.
ing negligence.! At least one court has called it the doctrine of antecedent
and subsequent negligence Several courts know it as the Rule of Davies
V. Mat,4.2
Requisites and Conditions
The application of the doctrine presupposes negligence on the part
of the person injured. If the plaintiff has not, by accepted standards,
been guilty of negligence, then there is no need to consider the doctrine.
* By Alexander L. Benton, L.L.B., American University, while a student at Washington
College of Law, American University. Member of District of Columbia Bar.
1 10 M & W 546, 152 Eng. Reprint 588 (1842).
2 10 M & W 549, 152 Eng. Reprint 589 (1842).
, Salmond on Torts (8th Ed. 1934), p. 480.
4l Winegardner v. Afanny, 237 Iowa 412, 21 N.W. 2d 209 (1946); Alullins v. Cincinnati,
N. & C. Ry. Co., 253 Ky. 156, 68 S.W. 2d 790 (1934); Bohlen, Cases on Torts (4th Ed.
1941), p. 522n: "Only in Missouri and Virginia is the humanitarian doctrine applied, as such,
although in substance itappears in many other states by a failure on the part of the courts
to distinguish between a p aintiff who by his negligence gets himself into a physically helpless
position of peril and one who is merely psychologically helpless, i. e., negligently inattentive.
Is the distinction justifiable?"
5Barlow v. Lowery, 143 Me. 214, 59 A. 2d 702 (1948).
0 Cline v. Killingbech, 288 Mich 126 284 N.W. 669 (1939).
1Hulsey v. Ill. Cent. Ry. Co., 242 Ala. 136, 5 So. 2d 403 (1941).
8 Tefft v. N.Y., N.H. & H. Ry. Co., 116 Conn. 127, 163 A. 762 (1933).
9 Union Traction Co. v. Ringer, 199 Ind. 405, 155 N.E. 826 (1927).
"0Lovell v. Sandersville R. Co., 72 Ga. App. 2d 692, 34 S.E. 2d 664 (1945)
[58]
The very core of the doctrine is founded upon the fact that both parties
to the controversy have been guilty of negligence. The doctrine is used
to counteract the defendant's defense that the plaintiff was guilty of
contributory negligence, which prior to the advent of Davies v. Mann
was a good defense and a complete bar to the plaintiff's recovery.
But it does not by any means follow that, because both parties are
negligent, the conditions for applying the doctrine have been met. As
one authority holds, "If the defendant does not discover the plaintiff's
situation, but merely might do so by proper vigilance, it is obvious that
neither party can be said to have a 'last dear' chance. The plaintiff is
still in a position to escape, and his lack of attention continues up to the
point of the accident, without the interval of superior opportunity of the
defendant which has been considered so important. The plaintiff may
not demand of the defendant greater care for his own protection than
he exercises himself. All but a few courts hold that there can be no
recovery".U
The so-called "Washington Formula,'" devised by the Supreme Court
of the State of Washington, states the conditions for applying the doctrine as follows: "Where the defendant actually saw the peril of a
traveler on the highway, and should have appreciated the danger, and
failed to exercise reasonable care to avoid injury, such failure made
the defendant liable, although the plaintiff's negligence may have continued up to the instant of the injury. Where the defendant did not actually see the peril of the plaintiff, but, by keeping a reasonably careful
lookout commensurate with the dangerous character of the agency and
the locality, should have seen the peril and appreciated it in time, by
the exercise of reasonable care, to have avoided the injury, and failure
to escape the injury results from failure to keep the lookout and exercise
that care, the defendant was liable only when the plaintiff's negligence
had terminated or culminated in a situation of peril from which the
plaintiff could not, by the exercise of reasonable care, extricate himself."
But, to illustrate the lack of accord that exists, negligence of the injured person is not included as one of the essential elements of the doctrine in some jurisdictions. It is held that, provided the injured person
did not voluntarily seek injury, the cause of his peril is immaterial.' In
Mooney v. Terminal Railway Association of St. Louis," the court held
that a plaintiff may recover under the humanitarian doctrine, although
he was guilty of any contributory negligence, and consequently could
have sued also for any primary negligence of the defendant proximately
causing his injury.
Present Status of the Doctrine
Generally speaking, courts presently limit application of the doctrine
of last clear chance in several ways. The doctrine is not applicable where
the emergency is so sudden that there is no time to avert the accident.
11Prosser
on Torts (1941),
. 414.
13Leftridge v. Seatle, 130 Wash. 541, 228 P. 302 (1924).
Teague v. Plaza Express Co., 354 Mo. 582, 190 S.W. 2d 254, 258 (1945)
4 353 Mo. 245, 176 S.W. 2d 605 (1944).
sa
[ 59]
As was said in Bagwill v. Pacific Electric Railway Co.,' "Certainly the
doctrine of last clear chance never meant -a splitting of seconds when
emergencies arise. . . The words mean exactly as they indicate, namely,
last clear chance, not possible chance." Other cases have expressed a
similar view?
Another limitation of the doctrine is its inapplicability where the
defendant, although aware of the plaintiff's perilous situation, is prevented
by his own antecedent negligence from avoiding it.a
Generally, courts refuse to apply the doctrine where both plaintiff
and defendant are negligent in being equally inattentive, or where there
is lacking sufficient evidence to establish not only actual knowledge of
the plaintiff's peril, but also the existence of such knowledge at a time
when it is within the defendant's power to avert the injury. Forcefully
demonstrating this is the decision in Panarese et at. v. Union Railway
Co. of N.Y.C.' This was an action for the death of pedestrian who
negligently ran into an approaching street car. The court held that the
street railway company was not liable, although the motorman might have
stopped the car by exercising reasonable care; that the doctrine of last
clear chance does not apply where two people are both guilty of continuous negligence causing injury to one of -them; and that to render the
street railway company liable under the last dear chance doctrine, the
motorman must have actually known, not only that the decedent was in
peril, but that he would or could not get out of the way in time to
stop the car by exercising reasonable care.
In WIoloszynowski v. N. Y. Central Railroad Co." the court also
refused to apply the doctrine. In that case the plaintiff, a boy struck
by defendant's engine, went upon the -tracks after the lowering of the
gates, and stood there in the path of the train and within the overhang
of the engine without looking to the right or left. The court said: "The
doctrine of last dear chance, however, is never wakened into action unless
and until there is brought home to the defendant to be charged with
liability a knowledge that another is in a state of present peril, in which
event there must be a reasonable effort to counteract the peril and avert
its consequences. Knowledge may be established by circumstantial evidence, in the face even of profession of ignorance; but knowledge there
must be, or a negligence so reckless as to betoken indifference to knowledge."
Admiralty courts do not generally apply the doctrine of last dear
chance. To determine which party shall bear the loss or the greater part
thereof, one of two rules is used, i.e., either the equal division of loss
rule or the apportionment rule. Under the equal division rule, if there
is a collision between two ships, and both are unquestionably at faulteither equally or in varying degrees-the total damages sustained by both
parties are determined, and each party is assessed one-half of the total
1"90 Cal. App. 114, 121, 265 P. 517, 519 (1928).
=DeVore V. Paris,88 Cal. App. 2d 576, 199 P. 2d 391 (1948); Correnl v. Calino,
115 Conn. 213, 160 A. 892 (1932).
11Johnson v. Dir. Gen. of Railroads, 81 N.H. 289, 125 A. 147 (1924); Capolla v.
R.I. Co., 103 A. 700 (1918).
18261 N.Y. 233, 185 N.E. 84 (1933).
"254 N.Y. 206, 172 N.E. 471 (1930).
[601
sum." Under the apportionment rule, admiralty courts apportion responsibility for the damages, and each party must bear that portion of the
total loss directly attributable to his negligent conduct.4
The present status of the doctrine of last clear chance in courts which
apply it can be summarized by classifying the principal cases under four
well-recognized categories:'
1. Plaintiff is helpless, and defendant has a conscious last dear chance
to avoid injury to plaintiff. Plaintiff can recover.
2. Plaintiff is inattentive, and defendant has a conscious last dear
chance to avoid injury to plaintiff Plaintiff generally can recover.
3. Plaintiff is helpless, and defendant has an unconscious last clear
chance to avoid injury to plaintiff. There is serious conflict of
authority as to plaintiffs recovery, although there is much authority
for it."
4. Plaintiff is inattentive, and defendant has an unconscious last clear
chance to avoid injury to plaintiff. By the great weight of authority,
plaintiff cannot recover.
Legal Justification
There have been a number of attempts to justify the doctrine of last
clear chance on the basis of some legal theory. As a result, there have
evolved two major factions, one of which advances the theory that the
rule of proximate cause is being applied to a situation where both the
plaintiff and the defendant are guilty of contributory negligence.' The
negligence of the plaintiff is considered a remote cause. The defendant's
negligence is failing to exercise ordinary care to avoid harming the
plaintiff becomes the immediate or proximate cause of the accident. This
subsequent negligence is considereJ as intervening between the accident
and the more remote negligence of the plaintiff. '
This theory has been subjected to severe criticism. One commentator
writes: "The unsoundness of the 'proximate cause' basis of the exception
(i.e., last clear chance) may be demonstrated in another fashion. If the
negligence of both plaintiff and defendant cause injury to a third person, both plaintiff and defendant may be held liable, even though the defendant had the last clear chance. Clearly plaintiff could not be held
unless his negligence was a proximate cause of the injury. Nor can plaintiff defend on the ground that defendant had the last dear chance. It is
a simple case of two or more proximate causes producing the injury, any
one or more of which can be held responsible." " And, in Davies v. Swdn
Mole and Wilson, A Stody of Comlarative Negligence, 17 Cornell
1932). The equal division of damages nile is applied by the U.S. This
ception from the general practice of other nations. See The Margaret, 30
1929, Ibid.at 339. 340.
"See Note, 92 A.L.R. 47, 83 (1934); 119 A.L.R. 1041, 1052 (1939);
375 (1947).
L.Q. 339 (Apr.,
represents an exF.2d 923 (CA-3,
171 A.L.R. 365,
ORestatement, Torts, Sec. 479(b)lII (1934).
"Clari v. Wilmington & W. R. Co., 109 N.C. 430, 14 S.E. 43 (1891).
_ Gregory v. Maine C. R. Co., 317 Mass. 636, 59 N.E. 2d 471 (1945); Seay v. So Ry.
Carolina Div., 205 S.C. 162, 31 S.E. 2d 133 (1944).
"Green, Contributory Negligence and Proximate caue, 6 N.C.L.R. 29, 30 (1927).
[61)
Moto" Co.,' the court said: "The doctrine of contributory negligence was
based on causation. If the plaintiff's negligence was one of the causes of
his own damage, he could not recover anything. In order to resolve the
question of causation, the courts used to apply the so-called doctrine of
last opportunity.' That was not a principle of law, but a test of causation. It was a fallacious test, because the efficiency of causes does not
depend on their proximity in point of time; but it held sway for many
years because it enabled the courts to mitigate the harshness of the doctrine of contributory negligence..." The use of the phrase "proximate
cause" in many cases involving the doctrine is either a poor selection of
words to describe the liability causative factor or -a poor use of the
words selected, or it may be both. An example is treating as interchangeable such terms as "proximate cause," "legal cause," and "natural and
probable consequence." ' Another critic of the doctrine writes: "According to the typical modern judicial statement, the last dear chance rule
is no more than a logically necessary deduction from the principle of
proximate cause; under it plaintiff can recover because his negligence is
'but a 'condition' or 'remote cause' of his injury, the defendant's wrong its
sole 'proximate cause.' Now it must 'be obvious at once that this explanation cannot stand the most superficial analysis if it purports to apply
to plaintiff the tests of legal cause generally used today in the inquiry
as to a defendant's liability. This has often been demonstrated. Certainly
if a man's negligence has put himself or his property in a position of
peril, that negligence is a proximate cause of the injury which follows
when the perils of the position become realized. In such case the likelihood of the danger that befell was one of the very things that made his
original act negligent, and probable consequences are proximate ones." '
The conclusion to be gathered from the various hostile sentiments,
with supporting reasons, relative to the validity of the proximate cause
theory, is aptly summed up in the statement: "Questions arising under
the last dear chance doctrine should not be confused ,by the injection of
discussions of proximate cause. If the courts will consider the conscious
control of the situation, they may well hold defendants responsible for
failure to avoid accidents without attempting to express the doctrine in
terms of cause." '
The other major theory, advanced by some of the more modern cases,
and recommended by some of the leading authorities, expressly repudiates
the proximate cause theory. This theory regards the last clear chance
doctrine as a true exception to, rathef than a logical qualification of, the
doctine of contributory negligence, so that when it operates, it permits a
recovery in spite of contributory negligence. " This exception, its advocates hold, is fundamentally based upon practical considerations of what is
required 'by fairness, comparative fault, social well-being and public
policy." In Cavanaugh v. Boston & M. R. Co., the court said: "It may be
...
that the real foundation for the rule is merely its fundamental justice
and reasonableness. The justice of the rule that the contributory negli- (1949) 2 K.B. 291.
"s See Myers, Causation and Common Sense, 5 Miami L. Q. 239 and n. 6 (1951).
2"James, Lait Clear Chance, 47 Yale L.J. 707 (1938).
"Comment, 21 Cal. L.R. 265 (1933).
[ 62]
gence of the party injured will not defeat the action, if it can be shown
that the defendant might, by the exercise of reasonable care and prudence,
have avoided the consequences of the injured party's negligence, may
be a sufficient foundation for it." "
It is submitted that the 'true exception" theory has the greater appeal
to logic and reason. Since the question of last clear chance is for the
jury, it is difficult to perceive how the average jury would be able to
comprehend the many distinctions incidental to an instruction on proximate cause as being the basis for liability under last dear chance. To
attempt to set up a standard for the rendition of the jury's verdict on the
basis of proximate cause merely tends to complicate and confuse. Indeed,
it is not necessary, for a jury can readily arrive at a just verdict without
recourse to one predominant cause to be selected from many possible
causes. The jury is primarily concerned with whether the defendant or
plaintiff is at fault, and whether the fault of one is greater than that of
the other. The "true exception" theory, unhampered by the cumbersome dogma applied to causation, is much more easily explained by the
court, and equally more easily understood by the jury.
Reasons for the Doctrine
Several reasons have been advanced for the doctrine of last clear chance;
of them, three appear more frequently in the literature and are probably the more readily accepted. The first is a growing dissatisfaction
with the defense of contributory negligence, which was a complete bar
to recovery by the plaintiff. The doctrine of contributory negligence was
a rigid rule, and it was strictly applied. This resulted in harsh consequences to the plaintiff in many instances, particularly where the plaintiff was at fault, but his fault or negligence was not nearly as great as
that of the defendant. As was said by the court in West v. Gillette,'
"The application of this rigid rule was in many cases found to work
injustice, for it would surely be unjust to hold that one should be denied
the protection of the law because of acts of carelessness on his part,
which were followed by subsequent acts of negligence on the part of
another, which latter acts were the proximate cause of the injury. It
would, in effect, be holding that where, for example, one goes upon a
railway track without exercising proper precautions as to danger, the
railway company would be relieved thereafter of the duty to exercise ordinary care for his safety."
The second reason is -based on humane considerations of fairness and
comparative fault." Many juries, experience has shown, tend to decide
BeKinney v. Chicago G. W.. R.R., 17 F.2d 708 (CA-8, 1927). See McCleary, The
Basof the Humanitarian Doctrine Reexamined, 5 Mo. L.R. 61 (1940).
32Green, sapra Note 26 at 3. 31, 32; James, supra Note 29 at 704, 709, 715; Mactntyre,
The Rationale of Last Clear Chance, 53 Harv. L.R. 1225, 1241, 1245 (1940).
M76 N.H. 68, 79A. 694 (1911).
,495 Ohio St. 305, 116 N.E. 521, 522 (1917).
"In Galena & Chicago Union R.R. v. Jacobs, 20 Ill.,478, 497 (1858), the court defined camparative negligence as follows: 'The degrees of negligence must be measured and
considered; and whenever it shall appear that the plaintiff's negligence is comparatively
slight and that of the defendant gross, he shall not be deprived of his action."
[631
negligence cases on the basis of comparative fault."' For example, in
Smith v. Dobson' the court issued rather specific and concise instructions which left no doubt that contributory negligence, no matter how
slight, constituted a total bar to plaintiff's recovery. Notwithstanding
these instructions, the jury's verdict awarded plaintiff one-quarter of the
damages. This verdict was not disturbed on appeal, the court giving due
cognizance to the fact that comparative fault was the basis for the jury's
reasoning. Moreover, there is a feeling by some that the last dear chance
doctrine is only a means of escape from the strict application of the contributory negligence doctrine, that the escape is disguised -by way of
comparative fault. Summarily, it is considered unjust and inequitable to
permit the defendant wholly to escape liability for his negligent act if
his negligence was greater than that of the plaintiff.*
The third reason for the doctrine of last clear chance centers around
social well-being and "public policy." The doctrine is founded upon
reasons humane which forbid a wrongdoer from taking advantage of the
perilous position of his fellow man to inflict injury and escape responsibility. It is felt by some that to permit the defendant to escape liability
under such circumstances disrupts the social order of a community and
contravenes public policy."'
The Future of the Doctrine
It may be said that today the doctrine of last dear chance is anything
but static. Several factors lend strong support to the conclusion that last
dear chance is on the way out.
There are courts which refuse to recognize the doctrine.' Some courts
have never adopted it, and others have repudiated it since adoption of
the apportionment of damages doctrine." There is a growing indication
that the courts of Missouri are retreating from the humanitarian doctrine.'
One leading authority" holds that there is no such rule as the last
dear chance. His theory, in substance, is that -the 'basis of liability
should be on the one whose act caused the harm, and not necessarily on
the one who had the last opportunity to avoid the harm, or, more aptly
stated: "Itis tempting to conclude that the last act or omission in point
0:Madn tyre supra Note 32 at 1229, after examining many cases involving contributory
neglig ce, concluded: "These cases show the courts charging the jury to the effect that
contributory negligence is a complete bar. This the jury promptly ignores and divides the
damages. And the judges seem unwilling to disturb the jury's disregard of the 'law'."
3 M & G 59, 133 Eng. Reprint 1057 (1841).
"MacIntyre, mupra Note 32 at 1251.
C Mole and Wilson. supra Note 20 at 333.
") See Note, 92 A.L.R. 47, 53, 140 (1934); 119 A.L.R. 1046 (1939); 171 A.L.R. 369,
370 (1947).
41 Peterson v. Baltimore & 0. R.R., 73 F. Supp. 597 (D.C. Pa. 1947); Kasanovich v.
George, 348 Pa4 199, 34 A. 2d 523 (1943)' Brennan v. Public Service Ry., 106 N.J. Law
464 148 A. 775 (1930); Blackwell v. First
IMatl. Bank, 185 S. C. 427, 194 S. E. 339 (1937);
Spillers v. Griffin, 109 S. C. 78. 95 S.E. 133 (1918).
U"Smith v. American Oil Co., 77 Ga. App. 463, 49 S.E. 2d 90 (1948); St. Louhi
Southwestern R.R. v. Simpson, 184 Ark. 633, 43 S.W. 2d 251 (1931); Sefferi v. Hines, 108
Neb. 62, 187 N.W. 108 (1922).
"In 1937 an effort was made to limit the doctrine so as to be consistent with the
American Law Institute's Restatement of the Law of Torts, Sec. 480. See Becker, The Humani.
tarian Doctrine, 3 Mo. L.R. 392 (1938).
Salmond on Torts (10th Ed. 1945), p. 458.
[64]
of time is of necessity not only the last link in the chain of causation,
but the determining factor in the result, since, ex hypothesi, but for
that last link the result would never have happened. But legal responsibility does not necessarily depend on the last link. Though the last
opportunity in most cases is a useful guide, it does not always provide
the decisive test for detemining whose negligence contributed to or
caused the accident, even when it is not necessary to take a microscope to
discover a separation of time, place or circumstance."
It is submitted that, in the face of such widespread dissatisfaction,
the doctrine will not remain unchanged. At present the predominant
trend is in the direction of apportionment of damages; there is an increasing tendency to think in terms of comparative fault. This, it appears, would be a compromise between two extremes-the strict common law doctrine of contributory negligence on one end, and the doctrine of last dear chance on the other-both of which are objectionable
in that they place the entire loss on one party, notwithstanding the fact
that both parties negligently contributed to the loss. If the contributory
negligence doctrine is invoked, the plaintiff must bear the loss; if the
doctrine of last dear chanoe is invoked, the defendant must bear the entire loss. The upshot of this is that instead of an elimination there is
merely a substitution of one evil for another-the cure is as damaging
as the disease.
Recent years have seen the enactment of a number of statutes which
expressly adopt some scheme of comparative or proportional negligence
in accident cases, and they are designed to cover negligence cases generally." The majority of these statutes are patterned after the Federal Employers' Liability Act, which reads in part as follows:'
"In all actions hereafter brought against any such common carrier by railroad, under or by virtue of any of the provisions of this
chapter, to recover damages for personal injuries to an employee,
or where such injuries have resulted in his death, the fact that the
employee may have been guilty of contributory negligence shall not
bar a recovery, but the damages shall be diminished by the jury in
proportion to the amount of negligence attributable to such employee...
Notwithstanding the fact that this Act was designed and intended
to be limited to the relatively simple situation where the maximum number of parties is two (i. e., employer and employee), it has been broad
in its application. It has been applied by both federal and state courts,
and in its administration the courts have not been presented with any insurmountable difficulty. Notable in this connection is the uncontroverted
fact that juries, after receiving instructions on the provisionsof the Act,
have been able, with a minimum of effort, to reach verdicts proportioning
the fault of the litigants. Also indicative of its successful application is
44Wis.
Stats. Sec. 331.045 (1933); Miss. Code Ann. Secs. 511, 512 (1930); Neb. Comp.
Stats. Sec. 20-1151 (1929); Contributory Negligence Act, 1945, 8 & 9 Geo. 6, C. 28, Stat 221;
Ont. Stats. 20 Geo. V. C. 26 (1931). See Gregory, L'islative Loss Distribution in Negiigtnce Actions. 57 and n. 5 (1936).
"635 Stat. 66 (1908), 45 U.S.C. No. 53 (1926).
[65 ]
that there has been no increase in the number of appeals as a result of
adoption of this rule. Appellate courts are most reluctant to disturb the
findings of the lower courts on questions of fact relative to proportioning
fault and allocating damages.
A still better statute governing comparative negligence is that of the
province of Ontario," which is designed to cover situations arising between more than two parties. It makes provision for contribution between joint tort-feasors, and sets up a rule to ,be applied where it is impractibable to determine the relative degree of fault as between any parties to the action. It also provides for adding as a party defendant any
person not a party to the action who it appears may be wholly or partly
responsible for the damage claimed.
As an alternative to enactment of comparative negligence statutes, courts
of common law might demand that they be allowed to adopt and apply
the equal division of damages rule in situations where the interests of
justice would warrant its invocation. This, however, should be only a
stop-gap measure-a step forward, away from both the strict contributory
negligence doctrine and last clear chance, in the direction of the comparative negligence rule, for, as has been ably pointed out" the equal
division rule is riddled with inequities, and its strict application, in many
instances, would cause one of the parties to be harmed to a greater extent than he should be. Admiralty courts, for example, are steadily pressuring for abandonment of the equal division of damages rule and for
adoption of a more flexible proportionment of damages rule.
There are those who recommend total abandonment of negligence and
substituting therefor liability without fault as a means of determining
the distribution of -loss in automobile injury cases.' This, however, as
has 'been forcefully demonstrated,' is not desirable at this time. It is
somewhat premature. It might be looked upon as the ultimate goal or
objective, but it can be attained only by taking necessary intermediate
steps. There is quite a jump 'between the present status of negligence,
and its attendant doctrine of last clear chance, and the ideal of liability
without fault. Adoption of comparative negligence statues appear to be
the intermediate step.
Conclusion
The doctrine of last dear chance as it exists today represents an evil
almost as bad as -the one it was designed to correct, i.e., strict application of the contributory negligence doctrine. It permits all of the loss
to fall on one party to a negligence action when the negligence of both
parties contributed to the total damage. This is inequitable and unjust.
Each person should bear the proportion of the loss occasioned by his
own negligent conduct.
There are several alternatives which could 'be adopted to replace last
47 Ont. Stats., supra Note 47, for which note also see Gregory, op. cit. at 156.172 for
a proposed statute which is much broader in scope, consisting ot some seventeen sections,
and more
closel
a roximates
ideal
4s
ile
and Wilson,
upraan
Note
20statute.
at 341.
4 Report by the Committee to Study Compensation for Automobile Accidents to the Co.
lumbia University Council for Research in Social Sciences (1932).
o Gregory, op. cit. supra Note 47 at 174.
E66J
clear chance-(1) the equal division of damages rule, (2) the apportionment of damages rule, or (3) the liability without fault rule. Of
these experience has shown the apportionment rule to be the most effective. The equal division rule, as used by admiralty courts, has been
ineffective in producing the desired results in certain cases in that it has
caused one party to suffer more harm than he deserved. The liability
without fault rule has not been tested. Its theory is logical, but very little
is known about its practical application. It discards all notions of negligence and permits all to recover, the extent of each party's recovery being
determined by the extent to which his conduct contributed to the total
damage. Perhaps it represents the final objective to be reached with respect to negligence actions, but common law courts of today are not yet
equipped to administer such a rule.
On the other hand, the proportionate loss or apportionment of damages rule has been given the practical test. The Federal Employers'
Liability Act is a striking example. Its administration has not proved difficult, and the same is true of comparative negligence statutes enacted by
the several states. This rule eliminates the harshness of both the contributory negligence doctrine and the doctrine of last dear chance;
all of the burden of the loss is not borne by one party. The objection
that the proportionate loss of the parties cannot be determined has been
refuted by jury verdicts under these statutes. Moreover, a comparative
negligence statute, in many instances, serves as a deterrent to the bringing of negligence actions under the last dear chance theory, particularly
where the plaintiff's negligence is great while that of the defendant is
only slight.
Today, unfortunately, the comparative negligence doctrine is in effect
in only a limited number of jurisdictions, and in all of these jurisdictions
its application is the result of statutory law. Common law courts are
under a disability to set up the doctrine by judicial fiat; this is a task
for the legislatures. There has been much agitation by admiralty courts
for enactment of comparative negligence legislation, and common law
courts should also urge such reform. Only by application of such a doctrine will the courts, in the administration of law in negligence cases, be
able to keep abreast of today's social conditions.
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