PIRE ET AL v. GLADDING MCBEAN CO ET AL (1942)

In his petition for rehearing, defendant Hickey states that this court failed to mention in its opinion the “strongest point” urged by defendant in support of the refusal of the trial court to give instructions on the last clear chance doctrine. Said point is stated in the petition as follows: “The decedent could have extricated himself from the dangerous position by the exercise of due care and he, not petitioner, had the last chance to avoid the accident.” This point was raised in defendant's brief but we did not believe it was seriously urged.

Defendant's argument seems to be that because the passenger, who had been riding with decedent, saw the on–coming truck of defendant and managed to step aside, decedent could have done likewise. Said defendant states, “It may be assumed that both were in approximately the same relative position with regard to Hickey's oncoming equipment.” The uncontradicted evidence was all to the contrary. It appears therefrom that the decedent was on the left side of his car near the steering wheel and that the passenger was on the extreme right side. Hickey tried to pass to the left of decedent's car and the right front portion of Hickey's truck struck the left rear of decedent's car. The positions of the two men and their possibilities of escape were therefore quite different. But in any event, if it may be said that there was any basis for an argument to the jury along the line suggested by said defendant, it certainly cannot be said as a matter of law that the decedent could have extricated himself from the dangerous position by the exercise of ordinary care or that the decedent had the last chance to avoid the accident. We therefore reiterate our former conclusion that instructions on last clear chance should have been given and that the jury should have been permitted to decide the questions of fact presented by such instructions.

The petition for rehearing is denied.

STURTEVANT, Acting Presiding Justice.