The first instruction to which exception was taken in effect advised the jury that the defendant was liable under the doctrine of the last clear chance, unless the plaintiff was guilty of contributory negligence: "unless at [before?] the time of the injury the plaintiff by the exercise of reasonable care could have avoided it." Since application of the doctrine presupposes negligence on the part of the plaintiff, this was error. If the instruction was an *Page 348 attempt to indicate that the doctrine would cease to apply if the plaintiff became aware of her peril in season by the exercise of reasonable care to avoid it, it did not so state. The error might be thought to have been cured by the correct and more detailed statement of the doctrine which followed, had that not in turn been supplemented by another instruction to which exception was also taken. This instruction was an attempt to apply the doctrine to the plaintiff's conduct: "So, too, if Mrs. Hering was actually aware of the approach of the defendant's automobile after the defendant was unable to avoid the collision but in season for her to have avoided it by the exercise of reasonable care, then the deceased is to be charged with concurrent negligence and the plaintiff cannot recover."
In the more usual case where the doctrine of the last clear chance has been applied, the plaintiff has remained oblivious to his peril until too late for saving action on his part. In such cases, the more complex situation envisioned by the quoted instruction has not arisen. Such an instruction is designed to meet circumstances where the defendant has had what was apparently the last clear chance, has failed to use it, and thereafter when the defendant has become unable to avoid collision, the plaintiff becomes aware of the defendant's presence, and can himself still take saving action. In such a case, the plaintiff should not be permitted to recover if it was he, rather than the defendant, who in fact had the last clear chance. The conduct of the plaintiff should nevertheless be governed by similar standards. To charge him with the last clear chance it is not enough merely that he was aware of the defendant's presence or approach, and was able to avoid the accident. It must also appear that he knew that the defendant was unable to avoid it. Legere v. Company,89 N.H. 423.
It was the latter factor which the instruction in this case overlooked. Mere knowledge of the defendant's approach was not necessarily equivalent to knowledge by the decedent that the defendant could not avoid collision. He may still have been sufficiently distant so that the decedent with lack of appreciation of the effect of speed and highway conditions, may have expected him to stop or turn aside, although in fact he could not. As counsel's exception stated, the instruction imposed upon the decedent a greater duty than is imposed by law. It permitted a finding that she had the last clear chance without requiring the preliminary finding that she know that the defendant could not avoid the accident, that he could not extricate himself from the danger of collision. This was contrary to the doctrine as applied in this jurisdiction, and in my opinion prejudicial error. *Page 349