specially concurring.
I agree that there was evidence of willful and wanton misconduct on the part of the defendant which was sufficient to require the inclusion of that issue in those submitted to the jury. I therefore concur in the reversal of the judgment and remand for new trial. However, appellant has raised the further issue that, even upon the theories submitted to the jury, and considering the possibility that the decedent negligently contributed to the accident by purchasing of the beer consumed by the two men, the defendant nevertheless had the last clear chance to avoid the accident. Under earlier law, and if so found by the trier of fact, this would have had the result of excusing or abrogating decedent’s negligence. That possibility, even with submission of willful-and-wanton-misconduct issue to the jury, remains a possibility upon the new trial and appellant’s argument that last clear chance has not been abrogated by our comparative negligence remains relevant.
The question at this time is whether we should decide for this state a legal proposition on which outside authorities are not in agreement and which may or may not pertain to the facts as developed at a future trial. I can sympathize with the majority’s position that we should settle the issue at this time but while appellant’s argument as to the relation of the two principles has been advanced at some length and with considerable persuasion, counsel for appel-lee has merely observed that last clear chance is not applicable. Mr. Justice Rose agrees with that view and I agree with him that such an important question should not be decided upon an inadequate factual base.
We have said that the rule of last clear chance “entails a clear and apparent opportunity to avoid the result.” Hendrickson v. Heinze, Wyo., 541 P.2d 1133, 1136 (1975), citing Dr. Pepper Company v. Heiman, Wyo., 374 P.2d 206, 212 (1962). In Borzea v. Anselmi, 71 Wyo. 348, 258 P.2d 796, 802 (1952), we found a definition of the rule in a statement from the Supreme Court of Florida in Merchants’ Transp. Co. v. Daniel, 109 Fla. 496, 149 So. 401, 403 (1933):
“The party who last has a clear opportunity of avoiding an accident, notwithstanding the negligence of his opponent, is considered solely responsible for it. Such is a simple statement of the doctrine of ‘the last clear chance.’ ”
Assuming that upon a new trial there might be evidence which would justify consideration of the rule of last clear chance, I would not say that the majority has gone astray in its discussion of the applicability of the rule. My difficulty lies in the fact that based upon the record now before us I can find no factual basis for consideration of the rule. I think that the evidence so far presented falls far short of the requirements which we have expressed. I fail to see where it can be said that defendant driving in any but a willful and wanton manner could be said to have seen the danger to which the decedent had negligently *199exposed himself and had a clear opportunity to avoid the accident. If he was willful and wanton the question of last clear chance as well as comparative negligence is of no importance. When two points are presented, one of which is completely dispositive of the appeal and another of which is not necessary to the reversal but may be of importance upon a retrial, it is difficult to say how far the court should go, but in this case I am on the side of abstinence. I express no opinion as to whether we should consider last chance as eliminated, but I do not think that we should enter into that discussion in this case.