The "last clear chance doctrine" applies | wantonness or willfulness, it is apparent to the facts of the particular case, and the that something more than the want of ordidoctrine is applicable if it appears that nary care is necessary. The injury must plaintiff was negligent and the defendant either be willful, or, as said in some cases, was not negligent in bringing about the dan- be due to such gross negligence as that wangerous situation, but saw or might have seen tonness or willfulness may be inferred. plaintiff's peril in time to prevent the injury. When bottomed upon the former proposition McGee v. Wabash R. Co., 114 S. W. 33, 35, that is to say, upon the doctrine that de214 Mo. 530. fendant's negligence, being last in point of time, is the proximate, and plaintiff's precedent negligence the remote, cause-neither lent need be shown. But it must appear in wantonness nor willfulness nor their equivasuch cases that plaintiff's and defendant's negligence are not concurrent in point of time. If concurrent in this sense, then there can be no recovery save where the rule of McCormick comparative negligence obtains. v. Ottumwa Ry. & Light Co., 124 N. W. 889, 892, 146 Iowa, 119.

The doctrine of "last clear chance" is an exception to the general rule that contributory negligence of the person injured will bar recovery without reference to the degree of negligence, and under the doctrine, an injured person may recover from the injury resulting from the negligence of another though his own negligence exposed him to the danger of injury, if the injury was more immediately caused by want of care on the other's part to avoid the injury after discovering the peril of the person injured. Clark v. St. Louis & S. F. R. Co., 108 Pac. 361, 363, 24 Okl. 764.

The doctrine of the "last clear chance" rests upon the principle that there is some thing in the plaintiff's condition or situation to admonish the defendant that he is not able to protect himself. It is the doctrine of prior and subsequent negligence, or remote and proximate cause, and presupposes the intervention of an appreciable interval of time between the prior negligence of the plaintiff and the subsequent negligence of the defendant. It applies notwithstanding the contribu

tory negligence of the plaintiff when the defendant knows, or by the exercise of ordinary care ought to know, of plaintiff's danger, and fails to do something which it has power to do to avoid the injury, or when the plaintiff is in some position of danger from a threatened contact with some agency under the control of the defendant, when the plaintiff cannot and the defendant can prevent a resulting injury. Roanoke Ry. & Electric Co. v. Carroll, 72 S. E. 125, 127, 112 Va. 598.

"The party who has the last opportunity of avoiding an accident is not excused by the negligence of any one else. His negligence, and not that of the one first in fault, is the proximate cause of the injury." Again it has been stated in this way: "Where both parties are negligent, the one that has the last clear opportunity to avoid the accident, notwithstanding the negligence of the other, is solely responsible for it; his negligence being deemed the direct and proximate cause of it." The rule is bottomed sometimes upon one proposition, and sometimes upon the other, and sometimes upon both. The first is that in such cases defendant's negligence, instead of being concurrent, is the sole and proximate cause of the injury, and the other is that plaintiff's negligence is no defense to wanton or willful negligence. When bottomed solely upon the last proposition, to wit,

Under the "last chance" doctrine, "though plaintiff negligently placed himself in a perilous position by driving near the the plaintiff the duty to avoid injuring him, track, the motorman operating the car owed and plaintiff's previous negligence did not bar a recovery if the injury resulted from the negligence of the motorman is not stopping or checking the car." Deitring v. St. Louis Transit Co., 85 S. W. 140, 144, 109 Mo. App. 524 (quoting and adopting definition in Sepetowski v. St. Louis Transit Co., 76 S. W. 693, 102 Mo. App. 119; Morgan v. Wabash R. Co., 60 S. W. 195, 159 Mo. 262; Hutchinson v. St. Louis & M. R. Co., 88 Mo. App. loc. cit. 383).

The theory of the last chance doctrine, which applies only where there is negligence of defendant subsequent to the negligence of plaintiff, so that defendant's negligence is the proximate cause of the injury notwithstanding plaintiff's prior negligence, is not submitted by instructions that plaintiff could recover if she, in attempting to cross a street, and while crossing it, was exercising ordinary care to avoid injury, and defendant's her danger, or negligently failed to stop the driver negligently failed to give warning of team after he could have seen by the exercise of ordinary care that plaintiff was in v. Wm. J. Lemp Brewing Co. (Mo.) 132 S. W. danger of collision with the team. Vaughn

293, 297.

What is termed as the "last chance doctrine" is the doctrine to the effect that in cases of contributory negligence he who has the last clear opportunity to avoid inflicting an injury is responsible if in the exercise of ordinary care he fails to do so. Where those in charge of a locomotive saw plaintiff's team slowly approaching a crossing 150 feet away, they were not chargeable with negliligence in failing to check the train, but were entitled to presume plaintiff would stop. Lambert v. Southern Pac. R. Co., 79 Pac. 873, 875, 146 Cal. 231.

An instruction that if the jury find from | covered the danger and averted the calamthe evidence that plaintiff was negligent in ity." This rule calls for "ordinary care" and attempting to cross the street, yet if they not for extraordinary care, and the use of further find that defendant's agent or serv- all possible precautions; and where plaintiff ant in charge of the car alleged to have in-stepped onto the track in front of some cars flicted the injury, either saw, or by the exercise of ordinary care could have seen, the danger of plaintiff's position in time to have avoided the collision, but failed to exercise care and negligently allowed the car to collide with plaintiff and injure her, then plaintiff is entitled to recover, presented what is known as the "humanitarian" or "last chance" doctrine. Hough v. St. Louis Car Co., 123 S. W. 83, 86, 146 Mo. App. 58.

moving towards him by gravity under control of the brakes alone, the mere fact that the crew of the switching engine standing close by, on a parallel track, did not sound either whistle or bell, but attempted to warn him by shouting to him, was not negligence on their part which would create a liability under the "last clear chance" doctrine, but at most an error of judgment in an emergency created by plaintiff's own act, especially where plaintiff heard but did not heed the shouts. Jones v. Sibley, L. B. & S. R. Co., 46 South. 61, 64, 121 La. 39 (citing Harlan V. St. Louis, K. C. & N. Ry. Co., 65 Mo. 22).

In an action for injuries to a person on the track of an electric street railway, an instruction that the motorman must use diligence to avoid danger to a person on the track, and that the car must be stopped, if there is time to stop it, where the person is in a dangerous position, and if there was time, in the exercise of ordinary care, for a motorman to have stopped the car after seeing, or after he was bound to see, with ordinary care, the dangerous position of the person on the track, and failed to check the speed of the car, then the defendant was guilty of negligence, is not objectionable in not properly stating the theory of "the last clear chance." Indianapolis St. Ry. Co. v. Seerley, 72 N. E. 169, 1034, 35 Ind. App. 467. The rule that one's neglect to discover

The doctrine of the "last chance," or "last clear chance," makes it necessary for the servants of a railway company, after they see the danger of a person who has negligently come upon the track, to avoid injuring him. To this end, the servants of the railway company are bound to keep a vigilant lookout in front of advancing engines or trains in order to discover persons exposed to danger on highway crossings, or at other places where they have a legal right to be, and the railway company will be liable for running over them if, by maintaining such a lookout and by using reasonable care and exertion to check or stop its train, it could avoid injury to them. The doctrine applies where the negligence of the person injured is remote and that of the railway company proximace, for if both be negligent, and the negligence of both be concurrent and directly contributing to produce the accident, then the case is one of contributory negligence pure and simple. If, however, the neg-peril of another is to be held to be the sole ligence of the person injured merely puts proximate cause of resulting injury is not him in the place of danger and stops there an arbitrary but a reasonable one. The test and does not actively continue until the is: What wrongful conduct occasioning an moment of the accident, and the railway injury was in operation at the very moment company either knew of his danger, or by it occurred or became inevitable? If just bethe exercise of such diligence as the law im-fore the climax only one party had the powposes would have known it, then, if the neg-er to prevent the catastrophe, and he negligence of the person injured did not concur- lected to use it, the legal responsibility is rently combine with that of the railway company to produce the injury, the company's negligence is the proximate cause, and that of the person injured is the remote cause. Drown v. Northern Ohio Traction Co., 81 N. E. 326, 328, 76 Ohio St. 234, 10 L. R. A. (N. S.) 421, 118 Am. St. Rep. 844.

his alone. If, however, each had such power and each neglected to use it, then their negligence was concurrent, and neither can

recover of the other. The doctrine of "last clear chance" will not be extended to cases where the plaintiff's own negligence extended up to and actually contributed to the The "last clear chance" doctrine is thus injury. To warrant its application there defined in Thompson on Negligence, 449; must have been some new breach of duty "When it is said, in case where the plaintiff upon the part of the defendant subsequent has been guilty of contributory negligence, to the plaintiff's negligence. In an action that the company is liable if by the exercise for damages for the death of a railroad emof ordinary care it could have prevented the ployé who was run over by an engine while accident, it is understood that it will be so at work on the track, where there was no liable if by the exercise of reasonable care, evidence to show whether he looked and after a discovery by defendant of the danger listened, an instruction that, if the employés in which the party stood, the accident could in charge of the engine could by the exercise have been prevented, or if the company fail- of reasonable diligence have seen deceased ed to discover the danger through the reck- on the track in sufficient time to have stopped lessness or carelessness of its employés, when the engine and avoided the injury, plaintiff the exercise of ordinary care would have dis- will be entitled to recover, notwithstanding

deceased was negligent in failing to see the approach of a train, was erroneous. Missouri Pac. R. Co. v. Bentley, 93 Pac. 150, 152, 78 Kan. 221 (quoting and adopting definition in Dyerson v. Union Pac. R. Co., 87 Pac. 680, 74 Kan. 528, 7 L. R. A. [N. S.] 132, 11 Ann. Cas. 207).

The engineer of a train who has given the danger signal, commencing when a trackman was seen on the track 600 feet away, and, as soon as he discovers that the man is apparently unconscious of the approach of the train, adopts every possible means to avert the accident, by sounding bell and whistle and reversing the engine and putting on the air brakes, has done his full duty, as respects "the last clear chance." Hoffard v. Illinois Cent. R. Co., 110 N. W. 446, 450, 138 Iowa, 543, 16 L. R. A. (N. S.) 797.

As applied to an action for injuries to a traveler in a collision with a street car, the doctrine of the "last clear chance" is that, even assuming the negligence of plaintiff contributed to the injury of which he complains, still if, after the occurrence of such contributory negligence, the employés of defendant saw the dangerous condition in which plaintiff was placed, and by the exercise of ordinary care could have stopped the car, and so have avoided injuring him, and failed to do so, the defendant is responsible. Henderson v. Los Angeles Traction Co., 89 Pac. 976, 980, 150 Cal. 689.

The theory of the "last clear opportunity," in the case of injury to one on the track by being struck by the engine, is that the engineer saw the party injured and realized her perilous situation and had ample opportunity to have avoided the accident by the exercise of reasonable caution and care. Zipperlen v. Southern Pac. Co., 93 Pac. 1049, 1053, 7 Cal. App. 206.

Traction Co., 81 N. E. 514, 517, 42 Ind. App. 395 (citing Indianapolis Traction & Terminal Co. v. Kidd, 79 N. E. 347, 350, 167 Ind. 402, 7 L. R. A. (N. S.) 143, 10 Ann. Cas. 942).

In an action for injuries to a person on the track of an electric street railway, an instruction that the motorman must use diligence to avoid danger to a person on the track, and that the car must be stopped, if there is time to stop it, where the person is in a dangerous position, and if there was time, in the exercise of ordinary care, for a motorman, to have stopped the car after seeing, or after he was bound to see, with ordinary care, the dangerous position of the person on the track, and failed to check the speed of the car, then the defendant was guilty of negligence, is not objectionable in not properly stating the theory of the "last Seerley, 72 N. E. 169, 170, 35 Ind. App. 467. clear chance." Indianapolis St. Ry. Co. v.

The doctrine of the "last clear chance" means that notwithstanding the previous negligence of plaintiff, if at the time of the injury it might have been avoided by the exercise of reasonable care on the part of defendant, defendant will be liable for the fail ure to exercise such care. Hence, where a passenger, a girl under 14 years of age, unaccustomed to riding on street cars, becomes frightened by the negligence of the defendant's servants in carrying such passenger past her known destination, and the conductor knows, or by the exercise of due care and diligence under the circumstances should know, of such passenger's frightened condition, and that she is about to leave the moving car, it is his duty to exercise the highest degree of care possible under the circumstances to prevent such passenger from alighting from the moving car. Kruger v. Omaha & C. B. St. Ry. Co., 114 N. W. 571, 573, 80 Neb. 490, 17 L. R. A. (N. S.) 101, 127 Am St. Rep. 786.

LAST DESCRIBED

A deed from a tax collector to the territory, which recites the assessment and levy of taxes for the year on property described as "Cabin and Lot 6 of Block 60 and Cabin and Lot 7 of Block 60” of a city and on per

taxes were delinquent, and that the property
was sold to the territory, and which conveys
to the territory "all that lot
land

* *

Under the doctrine of the "last clear chance," where negligence of defendant is the proximate cause of the injury for which suit is brought, and that of plaintiff a remote cause only, the plaintiff may recover. In the case of a person injured at a street railway crossing, if the motorman saw, or could have seen by the exercise of ordinary care, the situation of the person in time to have avoid-sonal property, and which states that the ed injuring him, and fails to do so, the railroad company is liable for his injury, and, notwithstanding the negligence of the person in placing himself in a position of peril, under the doctrine of the "last clear chance," this operates as an exception to the general rule forbidding recovery by plaintiff guilty of contributory negligence. It is no departure from just principles, but a wholesome and humane doctrine, to hold that if after the defendant knew, or in the exercise of ordinary care ought to have known, of plaintiff's negligence, he could have avoided the accident, but failed to do so, the plaintiff Grass v. Ft. Wayne & W. Val.

can recover.

*

of above and last described in Abell v.

this deed," conveys only lot 7.
Swain, 100 Pac. 831, 832, 12 Ariz. 421.

The phrase "last herein described," in a finding that a bankrupt was the owner of a business, together with a leasehold interest of the premises and the furniture contained therein, and the good will of the business, and that he had sold the property "last herein described," confines the sale by the bankrupt to a sale of the good will of his business and the furniture used in connection there

with, and not a sale of his leasehold interest. ¦ scribed-was intended, not the last day of the Leist v. Dierssen, 88 Pac. 812, 814, 4 Cal. period for which the publication was directApp. 634. ed. Harrison v. Wallis, 90 N. Y. Supp. 44, 49, 44 Misc. Rep. 492. LAST SESSION

thereto such will is made, and that there- | Notes] top p. 743; Walker v. Wells, 25 Ga. after death from such sickness does occur. 141, 71 Am. Dec. 164).

Baird v. Baird, 79 Pac. 163, 165, 70 Kan. 561, 68 L. R. A. 627, 3 Ann. Cas. 312.

LATE

"Latent ambiguity" arises from some collateral circumstance or extrinsic matter in a case where the language of the instrument is intelligible. Barrett v. Kansas & Texas Coal Co., 79 Pac. 150, 151, 70 Kan. 649.

A "latent ambiguity" exists when, there being no defect in the description on the face of the instrument, it becomes necessary to fit the description to the thing-in other words, to identify it by parol evidence; and evidence of surrounding circumstances and inferences from such circumstances are ad

The word "late," as used in an officer's return of service of the summons by leaving at defendant's "late place of residence" means formerly, recently, existing not long ago. "Late" is defined as "existing not long ago; not long ago but not now." The term "late place of residence" evidently meant the place where the defendant had recently resided but did not then reside, and hence the return did not show compliance with the statute requiring service by leaving at defendant's usual place of residence. Minneso "A 'latent ambiguity' in a will, which may ta Thresher Mfg. Co. v. L'Heureux, 118 N. W. be removed by extrinsic evidence, may arise 565, 566, 82 Neb. 692 (quoting and adopting (1) either when it names a person as the obdefinitions in 25 Cyc. p. 161; Webst. Dict.).ject of a gift, or a thing as subject to it,

LATELY PENDING

Where an exhibit in the record recited that certain chancery causes were "lately pending" in a certain circuit court, such recital did not show that such causes were still on docket. Scott v. Thomas, 51 S. E. 829, 831, 104 Va. 330.

An order-book entry of final judgment is essential to show in the record on appeal rendition thereof. Reference to the cause, in the clerk's certificate, as one "lately pending" in the court below, is not enough. Chicago Horseshoe Co. of Indiana v. Gostlin, 66 N. E. 514, 515, 30 Ind. App. 504.

LATENT

"Latent" means not discernible by examination. Anderson v. Van Riper, 128 N. Y. Supp. 66, 67.

LATENT AMBIGUITY

A "latent ambiguity" is one developed by extrinsic evidence, where the particular words, in themselves clear, apply equally well to two different meanings. Wolff Truck Frame Co. v. American Steel Foundries, 195 Fed. 940, 944, 115 C. C. A. 628 (citing definition in Petrie v. Trustees of Hamilton College, 53 N. E. 216, 158 N. Y. 458).

missible to show to which thing the ambiguous description applies. Sherrod v. Battle, 70 S. E. 834, 838, 154 N. C. 345.

and there are two persons or things that answer such name or description; or (2) when the will contains a misdescription of the object or subject, as where there is no person or thing in existence, or, if in existence, the person is not the one intended, or the thing does not belong to the testator." Wheaton v. Pope, 97 N. W. 1046, 1048, 91 Minn. 299 (quoting Patch v. White, 6 Sup. Ct. 617, 117 U. S. 210, 29 L. Ed. 860).

A "latent ambiguity" is one where the equivocality of expression or obscurity of intention does not arise from the words themselves, but from the ambiguous state of extrinsic circumstances to which the words of the instrument refer, and which is susceptible of explanation by the mere development of extraneous facts without altering or adding to the written language or requiring more to be understood thereby than will fairly comport with the ordinary or legal sense of the words and phrases used. Teague v. Sowder, 114 S. W. 484, 488, 121 Tenn. 132.

Where there is no defect on the face of a will, but there is an uncertainty in attempting to put it into effect, the ambiguity is "latent." Jennings v. Telbert, 58 S. E. 420-421, 77 S. C. 454.

LATENT DEFECT

A "latent defect" is one which could not have been discovered by inspection. L. McManus Co. v. Drexel Furniture Co., 68 S. 859, 860, 8 Ga. App. 158.

A defect in a roll of cloth sold, which consists of holes in the cloth, is not a latent defect, since it is easily discoverable. Strauss v. Salzer, 109 N. Y. Supp. 734, 735, 58 Misc. Rep. 573.

A "latent ambiguity," as defined by Lord Bacon, is "that which seems certain and without ambiguity for anything that appear-E. eth upon the deed or instrument, but there is some collateral matter, outside of the deed, that breedeth the ambiguity." If this double meaning is apparent on the face of the instrument, then the ambiguity is a patent one. If the language is apparently not of double meaning, but is shown to be so LATERAL only by the aid of collateral or extrinsic facts, the ambiguity is "latent." Oliver v. Henderson, 49 S. E. 743, 121 Ga. 836, 101 Am. St. Rep. 185 (citing 1 Jarm. Wills [Am.

In a statute providing that a petition to widen, deepen, and alter a ditch "shall be held to include any side lateral' spur or