(dissenting).
I dissent. I believe tha't most of the argument of the main opinion touches the primary negligence of the litigants rather than that involved in a last clear chance-situation. Further, it is suggested that the opinion assumes an inextricable peril that exists, if at all, in the arguments of the-main opinion, and a clear chance that is. not reflected in the record, — but one, rather, that is predicated on conjecture based on split-second time factors, distances, theorized in terms almost of inches, and upon the dangerous suggestion that defendant could have avoided the injury if he-had driven on the wrong side of the high-ivay. In my opinion such assumptions and suggestions do not lend themselves to the-invocation of a doctrine bottomed on exclusion of guesswork, asstimption, conjecture, doubt or anything shprt of reasonably uncontroverted facts, or a situation that is “free from confusion, uncertainty or doubt”' as the New Century Dictionary puts it, —so free from doubt, I would say, as to be clear beyond a reasonable doubt. If this be not so, the word “clear” must connote something less than “clear,” such as. “likely” or “probable.”
This court has assumed that the matter • of submitting the last clear chance theory to the jury is determinable by the trial court.1 I take it, then, that the trial court’s conclusion in this respect lightly should not be challenged, and it is submitted that the facts recounted in the main opinion do *219not make unreasonable, arbitrary or capricious, as we say it must be, the action of the trial court in this case of refusing to instruct as to last clear chance.
The main opinion generalizes, correctly, that here the evidence should be canvassed in a light most favorable to plaintiff. Such rule, of course, requires no one to believe the incredible, such as testimony that might have been given that the defendant was going 150 m. p. h. Although such evidence is not present here, some of it does approach a type of testamentary' fantasy which, in my opinion, is quite unworthy ■of belief, such as plaintiff’s testimony that ■defendant was traveling about 45 m. p. h. as ■observed by plaintiff from a distance of 325 feet from a position in front of the •oncoming vehicle.
The main opinion cites a number of cases to support its conclusion, none of which, I venture, is in point. Davies v. Mann, the landmark case involving a hobbled donkey injured and given to legal history when a team and wagon descended upon the beast at a smartish pace, is not analogous since there was neither a hobbling nor a dumb animal involved here.
Nor is Knutson v. Oregon Short Line R. Co., cited by the opinion, in point, since there a boy lay on the tracks, unconscious or asleep. To attribute either condition to the plaintiff in this case, is to claim a similarity not reflected in fact or fancy.
• Likewise, Teakle v. San Pedro, L. A. &' S. L. 'R. Co. is no authority- because of complete dissimilarity of fact. There the injured person had been rendered helpless and could not escape, being under a moving train, whose fire-box finally came along and killed him. Here the plaintiff was free as a bird to jump from the tractor at any time after defendant was as far as 325 feet away.
Following these citations the opinion speaks of an extension of the rule, which is admitted to be “not our case,” and then states that Sec. 479 of the Restatement is pertinent here, so that the lower court, viewing the facts in a light most favorable to plaintiff, was bound to instruct on the last clear chance, if reasonable men might conclude from the evidence that 3 conditions prevailed: (A) that plaintiff was in an inextricable danger, (B) that defendant knew or should have known of such danger had he exercised due care, and (C) that defendant thereafter could have avoided the injury if he had exercised reasonable care.
As to (A): The main opinion indulges in. some guesswont -when it suggests that 1) “jumping to either side presented plaintiff no assurance of safety” and that 2) “it would have. been unreasonable considering the safety of others,'including defendant himself, to expect plaintiff to jump off and abandon the moving tractor upon the public highway.” These gratuities respectively are 1) a bit of unfounded conjecture and 2) something unsupported by the record, since-there is no-indication that others. *220were about, (such latter suggestion being inconsistent, it would seem, with the opinion’s further statement that “the highway was completely free of other traffic”). The labor of the opinion seems accentuated when it is stated further that “due to the cumbersome nature of the tractor, it seems clear that reasonable minds could believe that as soon as ii'(the tractor) moved out into the lane of traffic plaintiff was in danger from oncoming vehicles, from which he could not extricate himselfThis Statement is made while another statement found in the opinion placed defendant 325 feet away at the time the tractor was moving into the lane of traffic. Such contention would make an average motorist, driving at a distance of 325 feet away from the tractor, at between 40 to 60 m. p. h., while watching traffic, an expert, without any foundation having been laid, as to the cumbersomeness of an 11J4 foot tractor of unknown design, weight or manufacture, which appears suddenly from behind a dense growth of shrubbery. Such conclusion by the main opinion attributes to defendant an omniscience not shared by this writer or that average know-it-all, the mythical reasonable, prudent man. To say, —much more assume, — that one entering a highway on a tractor clearly could not seek safety from an approaching vehicle 325 or even 125 feet away travelling at about 45 m. p. h., the rate testified to by plaintiff, is to blind oneself to reality and the capabilities of the human. To say that one entering the highway on a tractor, under the circumstances of this case, is in the same kind of inextricable peril, from which escape is impossible, as was the hobbled donkey, an unconscious boy on the railroad tracks, or an unfortunate victim imprisoned under a moving train, simply is to flout analogy, refuse to accept the obvious and to indulge in a conclusion unsupported by common experience, the record in this case, any authority cited by the main opinion, or discoverable by the writer, and to flee from the common experience of mankind.
Besides all this, the majority opinion indulges another inconsistency more difficult to reconcile, hardly justifiable under the last clear chance doctrine. The opinion contends that in the time during which plaintiff was in an inextricable peril from which he could not escape, (although plaintiff was seated on a tractor, free to move in any direction), the defendant clearly and easily could expend % of a second of reaction time, apply his brakes and stop short of the place of impact while plaintiff could not accomplish the simple physical act of jumping off a tractor. Life just isn’t that inconsistent.
As to (B) : I respectfully venture that as to this condition required by the majority opinion, such opinion simply assumes the point it seeks to establish. As I understand it, the last clear chance doctrine has to do with the primary negligence of defendant, plaintiff’s contributory negligence and the new or continued negligence of defendant without which there can be no last *221clear chance, and without which no injury would have resulted. The main opinion seems to imply that plaintiff was in an inextricable peril from the time defendant was 325 feet from the point of impact to the time of impact, by discussing what defendant could have done at that point, but concedes that defendant may not have been burdened with knowledge, as a reasonable person, that a man on a tractor entering a highway 325 feet down the pike, was in an inextricable peril. After devoting considerable space to what defendant did before he was 125 feet away, the main opinion then seems to say that inextricability started at that point. If the inextricability started when defendant was 125 feet away, then so far as the last clear chance doctrine is concerned, only the facts occurring after the defendant was 125 feet away should be discussed, since they are the only ones that conceivably could be pertinent in this case where the jury found no cause of action.
The opinion assumes that defendant knew the tractor would not turn, that it would not increase or decrease speed, that it was going downhill (a fact apparent to no one traveling the highway) or that plaintiff would not react normally and jump, or would do or not do any of dozens of things. To assume such facts is to succumb to conjecture and adopt a principle which is the antithesis of that applicable to a last clear chance, where the facts must be so crystal clear in establishing an undebatable chance to avoid an injury as to be free from such suggestions that had plaintiff jumped, he may not have been assured of safety.
Having arrived at a determination of condition (A) 'by simple ipse dixit and of condition (B) by what I think is conjecture unfounded in fact or on the record, the main opinion makes the rather startling pronouncement that “The presence of conditions (A) and (B) thus established, there still remains (C)” ! Then follows a statement that the chance to avoid the injury must be clear, not a bare possibility, such that a defendant cannot be charged zvith any precise procedure to avoid the injury, and such that an ordinary prudent person would have a real opportunity to see the danger, realize the inextricability and avoid the harm. I believe that such statement pays homage to a principle, but has not been applied in this case where the facts do not lend themselves to the high quality of proof which the majority opinion says is necessary to establish a last clear chance.
I believe some cases have extended the last clear chance doctrine to an extreme that does violence to the meaning of the word “clear,” and I wonder if we are not doing that here. I believe the doctrine means what it says, — a last clear chance to avoid injury, and if the doctrine be extended any further, it would not seem entirely foolish for someone to suggest that there might be a last chance after the last clear chance, where plaintiff could not recover because for a split-second, viewed *222from hindsight, he was freed from his inextricable position, or, had he exercised the due care during that instant which we think he should have exercised, could have extricated himself from such peril.
WORTHEN, J., does not participate herein.. Cox v. Thompson, Utah, 254 P.2d 1047.