Last Clear Chance: A Transitional Doctrine

Abstract

The rule that a plaintiff, though negligent himself, may nevertheless recover from a defendant who had the last clear chance to avoid injuring him, is no more to be accounted for by the legal reasoning generally used to sustain it than is any other rule of law. The iconoclast of yesterday rent the veil of rationalization and exposed economic and political factors and philosophies as the inarticulate major premises underlying legal decision. We may readily concede his thesis. Yet the fact that these premises are inarticulate of itself has some effect in directing the course of a trend, and leaves no little room for rationalization and explanation to give it shape--sometimes to distort it. Here we shall try to study the legal principles and formulae which have been thought to explain the rule in question, and to trace the influence these have had in giving it the various forms it has taken in different jurisdictions. We can then, perhaps, evaluate these influences in the light of the broad purposes which the rule may be useful in serving, and, on the basis of this appraisal, indicate the future changes which the doctrine is likely to undergo.