contributory negligence which has made the courts rebel at its application in many situations, and accept without reasoning the conclusion that the last wrongdoer is necessarily the worst wrongdoer, or at least the decisive one, and should pay.'
One of the early cases in which this principle originated, although not then denominated by its present picturesque appellation, was a decision of the Court of Exchequer, rendered in 1842, Davies v. Mann, 10 Meeson & Welsby 545. The action had been brought to recover damages for the killing of the plaintiff's donkey by being run down by the defendant's wagon and horses. The case was tried at Assizes. The evidence showed that the plaintiff turned the donkey into a public highway to graze and that the defendant's wagon drawn by a team of three horses, struck and killed the animal. The Judge instructed the jury that:
'* * * though the act of the plaintiff, in leaving the donkey on the highway so fettered as to prevent his getting out of the way of carriages travelling along it, might be illegal, still, if the proximate cause of the injury was attributable to the want of proper conduct on the part of the driver of the wagon, the action was maintainable against the defendant; and his Lordship directed them, if they thought that the accident might have been avoided by the exercise of ordinary care on the part of the driver, to find for the plaintiff.'
The jury returned a verdict for the plaintiff. The judgment was affirmed on appeal. Lord Abinger stated:
'The defendant has not denied that the ass was lawfully in the highway, and therefore we must assume it to have been lawfully there; but even were it otherwise, it would have made no difference, for as the defendant might, by proper care, have avoided injuring the animal, and did not, he is liable for the consequences of his negligence, though the animal may have been improperly there.' (p. 548).
Baron Parke was even more emphatic (p. 548):
'* * * although the ass may have been wrongfully there, still the defendant was bound to go along the road at such a pace as would be likely to prevent mischief. Were this not so, a man might justify the driving over goods left on a public highway, or even over a man lying asleep there, or the purposely running against a carriage going on the wrong side of the road.'
In a later case the House of Lords enunciated this principle as an accepted rule of law, in the following manner, Radley v. London and North Western Railway Co., (1876) Appeal Cases, 754-759:
'The first proposition is a general one, to this effect, that the Plaintiff in an action for negligence cannot succeed if it is found by the jury that he has himself been guilty of any negligence or want of ordinary care which contributed to cause the accident.
'But there is another proposition equally well established, and it is a qualification upon the first, namely, that though the Plaintiff may have been guilty of negligence, and although that negligence may, in fact, have contributed to the accident, yet if the Defendant could in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the Plaintiff's negligence will not excuse him.'
As there are slight variations in the definition and the application of the doctrine of the last clear chance among the States in this country, it seems useful to confine this discussion to the decisions of the District of Columbia Circuit. The leading decision in this jurisdiction is Dean v. Century Motors, 81 U.S.App.D.C. 9, 154 F.2d 201, in which the opinion was written by Judge Wilbur K. Miller (now Chief Judge):
'The doctrine presupposes a perilous situation created or existing through the negligence of both the plaintiff and the defendant, but assumes that there was a time after such negligence had occurred when the defendant could, and the plaintiff could not, by the use of means available, avoid the accident. It is not applicable if the emergency is so sudden that there is not time to avoid the collision, for the defendant is not required to act instantaneously.'
This case has been frequently cited as authoritative. The foregoing statement was quoted only recently in Conlon v. Tennant, 110 U.S.App.D.C. 140, 289, F.2d 881, 882. Among other decisions of the Court of Appeals for the District of Columbia applying this principle are: Gay v. Augur, 97 U.S.App.D.C. 336, 231 F.2d 495; Richardson v. Gregory, 108 U.S.Ap.D.C. 263, 265, 281 F.2d 626; Rankin v. Shayne Bros., Inc., 98 U.S.App.D.C. 214, 217, 234 F.2d 35.
In Gay v. Augur, supra, it is made clear that the duty of a defendant under the doctrine of the last clear chance arises subsequently to what is called his 'initial' or 'primary' negligence, and is not connected with it. It is there stated that 'The last clear chance is a chance that arises after the peril has developed.'
The authorities clearly demonstrate that the purpose of the doctrine of the last clear chance is to avoid the defense of contributory negligence. It has no other function. Moreover, it comes into play only in respect to an act, or failure to act, on the part of the defendant, occurring subsequently to his initial or primary negligence. In this case the defense of contributory negligence was abandoned and the claim of negligence asserted against the defendant involved what might be deemed his initial or primary negligence and not some failure on his part occurring later.
Accordingly, the Court adheres to its earlier ruling that the doctrine of the last clear chance was not properly in issue in this case.
The suggestion made by counsel that the abandonment of the defense of contributory negligence was an improper amendment of the pretrial order, is untenable. A litigant may always abandon a claim or a defense. What he may not do, is to interpose a new contention or modify one contained in the pretrial order if this opponent is prejudiced by such action.
The contention that the verdict of the jury was contrary to the weight of evidence is equally lacking in any basis. The Court is of the opinion that not only was the verdict of the jury sustained by substantial evidence, but that it was supported by the weight of evidence.
The motion for a new trial is denied.
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