Rew v. Dorn: A Novel Use of the Last-Clear-Chance Doctrine

Abstract

The last-clear-chance doctrine has brought forth more than its share of strange progeny but none is stranger than a decision handed down about a year ago by the Oregon Supreme Court. The facts are commonplace enough. Plaintiff was injured when two automobiles collided at a street intersection. She was riding in one of them driven by her husband. To a complaint charging various acts of negligence, defendant answered setting up contributory negligence and, as an affirmative defense, he said that he skidded on the icy street and lost control of his care just before entering the intersection, and that both plaintiff and her husband saw his predicament in time to have saved him, but negligently failed to do so. At the trial evidence was introduced which supported each allegation of the affirmative defense. Plaintiff and her husband denied seeing defendant in time to avoid him. But on the whole evidence the jury might properly have either (1) rejected the truth of this denial, or (2) accepted the denial yet found that plaintiff and her husband should, in exercise of due care, have seen defendant's plight in time to prevent the collision. The court instructed that either of these findings would bar recovery, and the jury brought in a defendant's verdict. The trial court set the verdict aside for misdirection of the jury, and the Supreme Court upheld this action. In doing so, it found the instruction erroneous because, under Oregon decisions, the defendant should have been accorded the last clear chance only if the jury found plaintiff (and her husband) actually saw him in time to keep from hitting him. Had this reasoning been used with reference to a claim for damages by the defendant under a counterclaim, that would have been logical and understandable. But there appears to have been no counterclaim and the only issue was whether plaintiff could maintain her action. In that state of the case, the rule announced is so shockingly out of harmony with current American rationalizations of contributory negligence and last clear chance that it invites analysis.