F: P had tied down his donkey’s feet to keep it from running away and the donkey was left by the side of the road.
D was coming down in his wagon at high speed and hit the donkey and killed it. The jury ruled for P.
R: Neg. D, claiming contributory neg. on the part of P, may not escape liability if D had the last chance to prevent the injury if he had not been neg.
A: even though there was negligence on part of the P, but D could have prevented the accident by use of ordinary care.
“Were this not so, a man might justify the driving over goods left on 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.”
Introduced the “Last Clear Chance” rule.
double affirmative defense
if you are the last and clear one who could avoid the accident, you are the one who is still liable.
Co: Last clear chance doctrine:
The doctrine of "last clear chance" acts as a limit on the contributory negligence defense. If, just before the accident, D had an opportunity to prevent the harm, and P did not have such an opportunity, the existence of this opportunity (this last clear chance) wipes out the effect of Ps contributory negligence. (Ex: P crosses the street without looking. D, who is traveling faster than the speed limit, discovers Ps plight shortly before the collision. D tries to hit the brake, but negligently hits the accelerator instead. P never spotted Ds car at all. Ds discovery of the danger gave him a last clear chance to avoid the accident, which D failed to take advantage of. This last clear chance wipes out the effect of Ps contributory negligence, and P may recover against D.)