I concur with the result on the first ground stated in the opinion of Mr. Justice WOLFE. At the time Darlene started to go south on Lake Street toward the boys she had a clear picture of the whole situation; there was no hurry or excitement to confuse her or interfere with her deliberate judgment. Under these circumstances, she proceeded toward the boys without sounding her horn or otherwise giving Gary any warning of her approach, knowing that he was intent on the game and probably not conscious that she was coming. The sounding of her horn at that time would clearly have avoided the accident. Under these circumstances, the case comes within the doctrine of the last clear chance.
I do not agree that Darlene had a last clear chance, under the second ground stated in Mr. Justice WOLFE'S opinion, to avoid the accident by sounding her horn or stopping the car sooner than she did after the warning had been shouted to Gary. I do not believe that the jury could reasonably find that Gary moved at most more than three or four running steps after the warning was shouted to him before he collided with the car. Coming unexpectedly as this warning shout did, it would take some time after Gary started running before Darlene could discern that he was moving toward the path of her car and apprise her that he was in danger, and it would take further time thereafter for her to start to try to sound her horn or apply her brakes. Whatever action she took during that time would be the result of reflex action rather than deliberation and clear thinking. Under such circumstances, the last clear chance *Page 365 doctrine has no application. That doctrine contemplates that after the one party has placed himself in a perilous position there is a clear chance on the part of the other party to avoid the accident. In view of the short time which elapsed after the warning shout to Gary was given before he collided with the car, and the fact that the shout came as a complete suprise to her, and the swift movements of events during that time, there was no clear chance afforded her to avoid the accident. I believe that this is a case where reasonable minds must all conclude that defendant did not have a clear chance to avoid the accident, and therefore that the court should not submit this phase of the case to the jury.
LARSON, C.J., dissents.