(concurring specially) :
I concur in affirming the judgment. In-' asmuch as the question relating to the submission of the case to the jury on the theory of “last clear chance” involves some difficulty and some disagreement, as indicated by the dissent, I desire to set forth my reasons for approval of doing so.
The foundational premise from which such an analysis must proceed is that one who is himself guilty of negligence which proximately causes his own injury ordinarily cannot recover from someone else for causing that injury, even though the latter may be. guilty of negligence which also concurs in proximately causing it.1 The doctrine of last clear chance is sometimes said to be an exception or modifica*223tion of the principle just stated.2 It arises from the humanitarian idea that even though a person (first actor) may have been negligent in getting into a position of peril, another person (second actor) who becomes aware of the peril of the first, and who has a fair and clear opportunity to avoid injury to the first, is obliged to exercise due care in connection with his then existing ability to avoid injury to the first actor. This is in harmony with the general policy of the law of discouraging harm or injury wherever possible.
We have heretofore had occasion to discuss “last clear chance” situations and approve the law as summarized in Restatement of Torts, Sections 479 and 480.3 Section 479 deals with the situation where the plaintiff has negligently got into a position of inextricable peril. A classic example is a person caught in the frog of a railroad switch. The defendant is held responsible if he either actually knows, or in the exercise of reasonable care should know, of the plaintiff’s peril, but nevertheless negligently proceeds and causes the injury. This is so because in such a situation the defendant’s later negligence is the final and decisive factor in producing the injury.
Section 480 deals with different circumstances, where the plaintiff is in a situation of continuing negligence, so that at any instant he could, by exercising due care become aware of and avoid the peril. In such a situation plaintiff’s own continuing negligence is usually considered to be a proximate cause of his injury, and precludes his recovery. But there are particular circumstances in which, because of the doctrine of last clear chance, that conclusion does not necessarily follow. Though the plaintiff may be in a position of peril because of his own negligence which is continuing, if it be shown that defendant acquired actual knowledge of the plaintiffs peril, and the defendant should realize that the plaintiff is unlikely to discover his peril in time to avoid harm, and the defendant thereafter has a fair, clear opportunity to avoid the injury, the law imposes upon him the obligation “to utilize with reasonable care and competence his then existing opoprtunity to avoid the harm,” and reasons that if he fails therein he is held responsible.4
*224This is true because of the significant difference between the respective positions of the plaintiff and the defendant. The plaintiff is then in danger, of which he is unaware. In contrast to this, the defendant has knowledge of the plaintiff’s peril, and should realize that he is oblivious to it. The defendant’s obligation to utilize with reasonable care his opportunity to avoid the harm includes consideration of his then superior knowledge of the situation. In this awareness defendant then has not only,' as the descriptive title of the doctrine states, “the last clear chance,” but has what appears to be the best and only remaining opportunity to avoid the harm. Accordingly, if he fails to use with reasonable care and competence his then existing opportunity to avoid it, it seems consistent with reason and justice to hold him responsible.5
In our case there is a reasonable basis in the evidence from which the jury could find, and I must assume did find, the facts essential to the application of the doctrine of last clear chance in accordance with Section 480 of the Restatement of Torts as just discussed. The trial court in a carefully and accurately prepared instruction so submitted the case, advising the jury that in order for the plaintiff to recover it must appear that David Reese was, “by reason of inattention or lack of proper alertness,” unaware of the peril that threatened him; that defendant actually saw David Reese and knew of his perilous position; that he then realized, or by the exercise of due care should have realized, that David Reese was oblivious to the danger; and that the defendant in such awareness, by the exercise of due care with his then existing ability, had a fair, clear opportunity to avoid the collision, and failed to do so.6
In accordance with what has been said above, I agree that the jury verdict in favor *225of the plaintiff, based on the facts as predicated in the court’s instruction, should be affirmed.
. Hughes v. Hooper, 19 Utah 2d 389, 431 P.2d 983; and see Pollari v. Salt Lake City, 111 Utah 25, 176 P.2d 111.
. See discussion in Prosser, Law of Torts, 437, et seq.
. See Anderson v. Bingham & Garfield Ry. Co., 117 Utah 197, 214 P.2d 607; and Compton v. Ogden Union Ry. & Depot Co., 120 Utah 453, 235 P.2d 515.
. Restatement, Torts: “§ 480. Last Clear Chance: Inattentive Plaintiff. A plaintiff who, by the exercise of reasonable vigilance, could discover the danger created by the defendant’s negligence in time to avoid the harm to him, can recover if, but only if, the defendant
(a) knows of the plaintiff’s situation, and
(b) realizes or has reason to realize that the plaintiff is inattentive and *224therefore unlikely to discover liis peril in time to avoid the harm, and
(e) thereafter is negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm.”
. The very language of the phrase itself: that the defendant has “the last dear chance” to avoid the injury impresses me as being as descriptive as any yet devised to describe the reason or the justification for invoking the doctrine and holding the defendant responsible, even though the negligence of the plaintiff is a causative factor in the situation. Prof. Prosser in his Law of Torts, pp. 437-443, has pointed out the difficulties related to the concept of “proximate cause,” and if this be rejected, the relationship to comparative negligence; and that justification of last clear chance is sometimes variously explained upon the basis that the defendant acting later and with fuller knowledge is “the last wrongdoer” or that as such he has “the higher degree of fault” or “the greater blame” or the “decisive blame” and should be held responsible, citing cases therein for each of such propositions, and also classification of cases in 92 A.L.R. 47 and 171 A.L.R. 365.
. See Morby v. Rogers, 122 Utah 540, 252 P.2d 231.