I dissent from the majority opinion because I feel that the question of last clear chance should have been submitted to and decided by the jury, and not by the trial court and by this court as a matter of law.
The observation that the doctrine of last clear chance is seldom applied in a situation wherein two motor vehicles are involved, and that possibly the rationale behind this tendency is the fact that care should be measured in terms of the power to inflict injury, suggests that the court itself is not in agreement on exactly what the doctrine means. That is understandable, of course, but I feel that what we ought to do under the circumstances is to undertake a better definition instead of leaving the matter in confusion.
If the court were to confine the doctrine strictly to pedestrians, upon the policy that the likelihood of death or great bodily injury is so much greater than is the case when all parties are within the protective framework of vehicles,1 one could at least *656understand the law whether he agreed with it or not. But the way in which this decision leaves it is very much like saying that we usually prefer Irish potatoes but sometimes eat sweet potatoes as well (though not ordinarily), but whether and why we are likely to eat sweet potatoes on a particular occasion is a question on which we cannot enlighten you, because we ourselves really don’t know.
Part of the trouble with last clear chance is that it is a misnomer. In a true sense, an accident just does not happen if any of the parties has a “clear chance” to avoid it. If he does have such an opportunity and doesn’t take it, it is not an “accident.” Some think the theory is based bn comparative negligence.2 I do not agree. Whether it is sound or unsound, I view the theory as being this: If either party to an accident could have avoided or averted it by the exercise of ordinary care after it was too late for the other party to do so by the exercise of ordinary care on his own part, he alone is responsible. In effect, it is a matter of proximate cause; when one party has a reasonable chance, by the exercise of ordinary care, to avert the accident after the other party, through negligence or otherwise, has become helpless to prevent it, the last negligence in point of time is the superseding and proximate cause. And this is true whether the damage is to person or property; last clear chancé is premised on cause, not effect.
Had the appellant in this case been a man standing in the highway there can be little question that a last clear chance instruction would have been required. Cf. Mullins v. Bullens, Ky., 383 S.W.2d 130, 133 (1964). In Deegan v. Wilson, 288 Ky. 801, 157 S.W.2d 68 (1942), the doctrine was held appli-. cable to a boy on a bicycle. See Stanley’s Instructions, § 110a. In Roederer’s Adm’x. v. Gray, 253 Ky. 669, 69 S.W.2d 998 (1934), it was held applicable to a man on a horse-drawn wagon. See Stanley’s Instructions, § 120. By what metamorphosis does it become inapplicable to a man on a tractor?
In conclusion, let me say that I do not consider this to be a strong case of last clear chance, but I do think there was enough to make it a jury question.
HILL, J., joins in this dissent.
. I suggest that the “rationale” mentioned by the majority does not lie in the power to inflict injury, but in the severity of injury likely to be inflicted. A motorist has the same power to inflict injury on a load of hay standing *656in the road as he does a pedestrian, and certainly he has much more of a “clear chance” to see and avoid it.
. Cf. W. P. Blackburn, Jr., “Last Clear Chance — A Defective Tool for Comparing Negligence and Determining Proximate Cause,” Louisville Bar Association Bulletin, Yol. 17, No. 1 (Spring 1967).