The plaintiff was injured in a collision of the automobile in which she was riding, driven by her husband, and one driven by the defendant. The defendant, as an affirmative defense, alleged that as he was about to enter the intersection, his car skidded and went out of control; and that both the plaintiff and her husband saw the dangerous situation in sufficient time to have avoided the accident. The court instructed the jury that if the plaintiff or her husband saw, or by the exercise of reasonable diligence could have seen, that the defendant was in a place of danger and that by the exercise of reasonable diligence on their part they could have avoided injuring him, and that they failed to exercise such diligence, then the plaintiff could not recover. Held, this instruction was erroneous. A defendant may be entitled to the application of the last clear chance doctrine, but before it can apply there must be actual knowledge of the dangerous situation of the other person. The duty to avoid one who has negligently placed himself in a situation of danger arises only when his position is actually known, not when it ought, in the exercise of reasonable diligence, to have been known. Rew v. Dorn, (Ore. 1938) 85 P. (2d) 1031.
John H. Uhl,
NEGLIGENCE - CONTRIBUTORY NEGLIGENCE - LAST CLEAR CHANCE DOCTRINE APPLIED TO THE PLAINTIFF - NECESSITY OF ACTUAL KNOWLEDGE OF DANGER,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol37/iss7/21