(dissenting) — The theory of the “last clear chance” doctrine is that one party, by his own negligence, is in a position of peril. Another party, not negligent, sees the perilous position in which the first party is situated. It then becomes the duty of the second party, by the exercise of reasonable care, to do all that he can to prevent possible injury to the first party. Whether or not the second party does exercise such care is a question of fact for the jury.
. Here, the appellant, through his own negligence, was in a position of peril. Respondent saw him, sounded his horn and applied the brakes lightly, then proceeded toward the inside lane to pass in front of appellant. While proceeding toward the inside lane he looked to the rear and took his eyes off of appellant. The instant respondent saw appellant in a position of peril due to the latter’s own negligence, respondent owed a duty under the “last clear chance” doctrine, by the exercise of reasonable care, to do all that he could to prevent injury to appellant. It was a question of fact for the jury to determine whether or not, under the circumstances, respondent discharged the duty required of him.
I cannot conceive of a clearer case for the application of the “last clear chance” doctrine, and I am fearful that if this opinion prevails, the doctrine might just as well be rolled up and permanently placed off of the highway.
Grady, J., concurs with Schwellenbach, J.