(dissenting).
I respectfully dissent, suggesting that “last clear chance” has no applicability here. The facts recited in the main opinion themselves establish such a negative conclusion. Such recited facts only have to do with the primary negligence of each party, and could not justify even a conjecture that defendant clearly could have avoided the accident after being cognizant of plaintiff’s negligence. There is nothing reflecting any last clear chance, last almost clear chance, any last dubious chance, or any chance at all to avoid the collision.
It is clear that at that magic, split-second moment that has given this court so much trouble, and which etymologically has prompted some courts to attribute to the word “clear” synonymity with “highly improbable,” the defendant, had he turned to the right would have hit the car of the shoeless lady in distress, and had he turned to the left would have decimated another car driving alongside. Only an ectoplastic flight through space could have avoided the accident, and that course was not too clear.
The main opinion asserts that if 1) defendant knew of plaintiff’s negligently induced predicament, and if 2) defendant’s brakes were not defective, the case must be given to the jury with a last clear chance instruction. Not so. The opposite is true. Such submission on that theory is error, absent other facts in the record that present at least some controversion which a jury, discounting some disputed evidence, had before it in the form of other, and believable facts, from which reasonable persons could conclude that there was a clear chance — not just any old kind of chance— to avoid the accident. Such is not the case here, and having simple 1) knowledge of the peril and 2) good brakes, obviously is insufficient to invoke the doctrine. Other*336wise we might as well say there may have been a last clear chance after the last clear chance, ad infinitum.
The case should be remanded for a new trial.