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LARD

lust, depending upon the purposes or feelings

of the person who is guilty of such indecenWhere "lard" compound made cy or impropriety. Indecency of conduct of cotton seed oil and oleostearine, and was may tend to prove lasciviousness, but when generally described as lard both in trade and lasciviousness is proven an unchaste charamong consumers, proof of the theft of such acter is thereby established. State v. Humcompound was sufficient to sustain a con- mer, 104 N. W. 722, 724, 128 Iowa, 505. viction under an indictment charging the theft of lard, though “lard” as defined by lewd, or lascivious book, pamphlet, print, or

Rev. St. 8 3893, declares every obscene, the dictionaries and the pure food law means a product of a hog. Roman v. State, 142 S. other publication of an indecent character, W. 912, 913, 64 Tex. Cr. R. 515.

or notices giving information for obtaining such publications, to be nonmailable matter,

and prescribes a punishment for the use of LARGE

the mails to transmit or circulate the same. See At Large.

Held, that the words "obscene," "lewd," and

"lascivious," as used in such section, signify A complaint for injury to a pedestrian that form of immorality which has relation while passing along a sidewalk on a dark to sexual impurity, having the same meaning night by running into a stone, in alleging as is given them at common law in prosecuthat the city had permitted a "large" stone, tions for obscene libel. Hanson v. United unguarded and unprotected, to remain along States, 157 Fed. 749, 750, 85 C. C. A. 325. the sidewalk, at the edge thereof, for a long

"Lasciviousness" is defined as wantontime prior to the accident, and that it was the city's duty to guard against the danger W. 722, 723, 128 Iowa, 505 (citing Ex parte

ness or lewdness. State v. Hummer, 104 N. by erecting barriers, is insufficient; it not showing the size or location of the stone, or Doran, 32 Fed. 76; United States v. Clarke, how long it had been there, so as to make 38 Fed. 732; United States v. Durant, 46 it clear that it was the city's duty to main- Fed. 753; State v. Lawrence, 27 N. W. 126,

19 Neb. 307). tain barriers. The word "large,” as here used, like "along" and "edge,” is a relative term. It does not indicate the size or char- LAST acter of the stone, except in a comparative See Same as Last. sense. City of Vincennes v. Spees, 74 N. E. 277, 280, 35 Ind. App. 389.

LAST ADJUSTED VALUATION

Under Act April 12, 1905 (P. L. 142), proLARGE CONSUMER

viding for the levy of a road tax on "the The term "large consumer," used in a last adjusted valuation" for county purposes, contract between a city and a water company there is no such valuation until the county providing that the cost of furnishing water conmissioners have corrected the assessor's to manufacturers and large consumers was return, and the board of revision has given to be estimated according to the size of the the taxpayers opportunity to object. H. C. establishment, does not mean persons taking Frick Coke Co. v. Mt. Pleasant Tp., 71 Atl. water for ordinary family use, where such 930, 931, 222 Pa. 451. persons are fully covered by a schedule based on houses having a certain number of rooms

LAST ASSESSMENT and occupied by different numbers of fami- The "last county assessment," contemlies, but contemplates concerns like manu-plated by Kirby's Dig. $ 5683, providing that factories, which differ more or less from in- no single improvement shall be undertaken stances specifically provided for. Berends which exceeds in cost 20 per cent. of the v. Bellevue Water & Fuel Gaslight Co., 82 value of the property in the improvement disS. W. 983, 984, 119 Ky. 8.

trict as shown by the “last county assess

ment," includes the valuation added by the LARRY

county board of equalization, and where the

value is thus increased before the board of A “larry" is a kind of car used to haul improvement of a city reports the estimatcoal from a coal mine tipple to coke ovens, ed cost of an improvement, and before the and from which larry ovens are charged with passage of an ordinance levying the assesscoal. Hairston v. United States Coal and ment to pay for the improvement, such inCoke Co., 66 S. E. 473, 66 W. Va. 324.

creased value must be considered. Board

of Improvement Dist. No. 5 of Texarkana v. LASCIVIOUS

FOffenhauser, 105 S. W. 265, 268, 84 Ark. 257. See, also, Lewdness.

LAST CLEAR CHANCE Character usually cannot be characteriz

See, also, Discovered Negligence; Dis

covered Peril; Humanitarian Doctrine. ed as lascivious, wanton, or lewd unless it was intentionally calculated to incite to lust. The doctrine of the "last clear chance," It is thus distinguished from indecency and generally attributed to the case of Davies v. impropriety, which may or may not indicate Mann, 10 Mees. & W. Rep. 546, in which the owner of a donkey, who negligently turned | defendant is liable. Matz v. Missouri Pac. it out on the highway with its feet hobbled, Ry. Co., 117 S. W. 584, 591, 217 Mo. 275. was allowed, nothwithstanding his own negligence, to recover from a person driving along not limited to cases where the peril of the

The doctrine of "last clear chance" is the highway who carelessly ran into and killed it, is that the contributory negligence person injured has been actually discovered of the party injured will not defeat the ac- by those causing the injury, but extending to tion if it be shown that the defendant might covered by the exercise of reasonable care on

cases where the peril could have been disby the exercise of reasonable care and pru. their part. The duty to exercise due care dence have avoided the consequences of the to avoid the consequence of another's negliinjured party's own negligence. Pilmer v. Boise Traction Co., 94 Pac. 437, 438, 14 gence, arises when the circumstances are Idaho, 327, 15 L. R. A. (N. S.) 254, 125 Am.

such that an ordinarily prudent person would

have reason to apprehend its existence. St. Rep. 161.

Nichols v. Chicago, B. & Q. R. Co., 98 Pac. “The last clear chance doctrine" arises 808, 814, 44 Colo. 501. where plaintiff has been negligent in placing himself in a position of danger, but

The "last clear chance" doctrine is somethat negligence has spent its force at the what of an exception to the general rule time he received an injury owing to the neg- of law, by which an injury caused by the ligence of defendant. Scholl v. Belcher, 127 joint negligence of the wrongdoer and the Pac. 968, 975, 63 Or. 310.

person injured is not actionable. Murphy v.

Wabash R. Co. (Mo.) 128 S. W. 481, 485. Under the "last clear chance doctrine," one is liable for injury negligently inflicted The doctrine of the "last clear chance" upon another, though the injured person by does not involve the recognition of liability his own negligence put himself in the place in case of concurrent negligence, and does of danger, if the person inflicting the in- not involve a case of comparative negligence, juries saw the peril in time to have avoid- but requires one to use reasonable care not ed the accident by using ordinary care. Cer- to injure another in the condition in which rano v. Portland Ry., Light & Power Co., the latter has placed himself, though the lat. 126 Pac. 37, 40, 62 Or. 421.

ter is guilty of negligence in putting himself The "last clear chance” to avoid injury is in a place of danger avoidable by reasonable the last opportunity to avoid the danger, by precautions. Welsh v. Tri-City Ry. Co., 126 one of the parties learning of it, and know

N. W. 1118, 1119, 148 Iowa, 200. ing that the safety of the other depends sole- The exception to the general rule makly upon his conduct, and the rule does not ing contributory negligence a defense, known apply where the act of the injured party and as the "last chance doctrine," does not apthe defendant are substantially concurrent. ply where there is no negligence of the deIndianapolis St. R. Co. v. Bolin, 78 N. E. fendant supervening subsequently to that of 210, 213, 215, 39 Ind. App. 169.

the plaintiff, as where his negligence is The “last clear chance" doctrine, which continuous and operative down to the moment is the rule that, notwithstanding the injured of the injury, or where his negligence or posiperson's original negligence, the defendant tion of danger is not discovered by the deis liable if, by the exercise of ordinary care, fendant in time to avoid the injury. Denver he might have discovered plaintiff's peril in City Tramway Co. v. Cobb, 164 Fed. 41, 43, time to have avoided the injury, is in con

90 C. C. A. 459. flict with the contributory negligence rule. The rule of “the last clear chance" imChicago, B. & Q. R. Co. v. Lilley, 93 N. W. plies that the one charged with negligence 1012, 101.6, 4 Neb. (Unof.) 286.

knew the person injured was in a place of "Last clear chance" is the doctrine that danger and negligently failed to avoid injurthough the plaintiff may have been guilty ing him; but his testimony that he did not of negligence, and although that negligence have such knowledge is not conclusive. Such may in fact have contributed to the accident, knowledge may be shown by proof that the yet, if the defendant could, in the result, by person injured was in a situation of immithe exercise of proper care and diligence, nent danger, and so situated that the one inhave avoided the mischief which happened, juring him, if he used his senses as human the plaintiff's negligence will not excuse him. beings ordinarily do, must have known the McClanahan v. Vicksburg, S. & P. R. Co., danger. Zitnik v. Union Pac. R. Co., 136 N. 35 South. 902, 906, 111 La. 781.

W. 995, 997, 91 Neb. 679. If the negligence of both parties co

The doctrine of "last clear chance" canoperate there is usually no liability, except not be applied where both parties are confor the "humanitarian or 'last chance doc- temporaneously and actively in fault, and trine,” which means that, though the in- by their mutual carelessness an injury enjured party may have been negligent in plac-sues to one or both of them. Rowe v. Southing himself in a position of peril, yet if ern California Ry. Co., 87 Pac. 220, 221, 4 defendant, by ordinary care, did see, or Cal. App. 1 (citing Holmes v. South Pac. could see, him in time to have averted injury, Coast Ry., 31 Pac. 834, 97 Cal. 169).

The “ast 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 The doctrine of "ast clear chance” is time, is the proximate, and plaintiff's pre

cedent negligence the remote, cause-neither an exception to the general rule that con

wantonness nor willfulness nor their equivatributory negligence of the person injured

lent need be shown. But it must appear in will bar recovery without reference to the degree of negligence, and under the doctrine, negligence are not concurrent in point of

such cases that plaintiff's and defendant's an injured person may recover from the in- time. If concurrent in this sense, then there jury resulting from the negligence of another

can be no recovery save where the rule of though his own negligence exposed him to the danger of injury, if the injury was more

comparative negligence obtains. McCormick

v. Ottumwa Ry, & Light Co., 124 N. W. 889, immediately caused by want of care on the

892, 146 Iowa, 119. other's part to avoid the injury after discovering the peril of the person injured. Under

the

"last chance" doctrine, Clark v. St. Louis & S. F. R. Co., 108 Pac. "though plaintiff negligently placed himself 361, 363, 24 Okl. 764.

in a perilous position by driving near the The doctrine of the “last clear chance” the plaintiff the duty to avoid injuring him,

track, the motorman operating the car owed rests upon the principle that there is some and plaintiff's previous negligence did not thing in the plaintiff's condition or situation bar a recovery if the injury resulted from to admonish the defendant that he is not the negligence of the motorman is not stopable to protect himself. It is the doctrine of

ping or checking the car." Deitring v. St. prior and subsequent negligence, or remote Louis Transit Co., 85 S. W. 140, 144, 109 and proximate cause, and presupposes the in

Mo. App. 524 (quoting and adopting definitervention of an appreciable interval of time between the prior negligence of the plaintiff tion in Sepetowski v. St. Louis Transit Co., and the subsequent negligence of the defend- Wabash R. Co., 60 S. W. 195, 159 Mo. 262;

76 S. W. 693, 102 Mo. App. 119; Morgan v. ant. It applies notwithstanding the contributory negligence of the plaintiff when the de Hutchinson v. St. Louis & M. R. Co., 88 Mo.

App. loc. cit. 383). fendant knows, or by the exercise of ordinary care ought to know, of plaintiff's dan- The theory of the last chance doctrine, ger, and fails to do something which it has which applies only where there is negligence power to do to avoid the injury, or when the of defendant subsequent to the negligence of plaintiff is in some position of danger from plaintiff, so that defendant's negligence is a threatened contact with some agency un- the proximate cause of the injury notwithder the control of the defendant, when the standing plaintiff's prior negligence, is not plaintiff cannot and the defendant can pre- submitted by instructions that plaintiff could vent a resulting injury. Roanoke Ry. & recover if she, in attempting to cross a street, Electric Co. v. Carroll, 72 S. E. 125, 127, 112 and while crossing it, was exercising ordiVa. 598.

nary care to avoid injury, and defendant's "The party who has the last opportunity her danger, or negligently failed to stop the

driver negligently failed to give warning of of avoiding an accident is not excused by team after he could have seen by the exerthe negligence of any one else. His negli- cise of ordinary care that plaintiff was in gence, and not that of the one first in fault, danger of collision with the team. Vaughn is the proximate cause of the injury.” Again v. Wm. J. Lemp Brewing Co. (Mo.) 132 S. W. it has been stated in this way: “Where both

293, 297. parties are negligent, the one that has the last clear opportunity to avoid the accident, What is termed as the "last chance docnotwithstanding the negligence of the other, trine" is the doctrine to the effect that in is solely responsible for it; his negligence cases of contributory negligence he who has being deemed the direct and proximate cause the last clear opportunity to avoid inflicting of it.” The rule is bottomed sometimes upon an injury is responsible if in the exercise of one proposition, and sometimes upon the ordinary care he fails to do so. Where those other, and sometimes upon both. The first in charge of a locomotive saw plaintiff's is that in such cases defendant's negligence, team slowly approaching a crossing 150 feet instead of being concurrent, is the sole and away, they were not chargeable with negliproximate cause of the injury, and the other ligence in failing to check the train, but is that plaintiff's negligence is no defense to were entitled to presume plaintiff would stop. wanton or willful negligence. When bottom- Lambert v. Southern Pac. R. Co., 79 Pac. ed solely upon the last proposition, to wit, 873, 875, 146 Cal. 231.

or

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 ex- moving towards him by gravity under conercise of ordinary care could have seen, the trol of the brakes alone, the mere fact that danger of plaintiff's position in time to have the crew of the switching engine standing avoided the collision, but failed to exercise close by, on a parallel track, did not sound care and negligently allowed the car to col- either whistle or bell, but attempted to warn lide with plaintiff and injure her, then plain- him by shouting to him, was not negligence tiff is entitled to recover, presented what is on their part which would create a liability known as the "humanitarian" "last under the “last clear chance" doctrine, but chance" doctrine. Hough v. St. Louis Car at most an error of judgment in an emergenCo., 123 S. W. 83, 86, 146 Mo. App. 58. cy created by plaintiff's own act, especially

The doctrine of the “last chance," or where plaintiff heard but did not heed the "last clear chance,” makes it necessary for shouts. Jones v. Sibley, L. B. & 8. R. Co., the servants of a railway company, after 46 South. 61, 64, 121 La. 39 (citing Harlan they see the danger of a person who has v. St. Louis, K. C. & N. Ry. Co., 65 Mo. 22). negligently come upon the track, to avoid In an action for injuries to a person on injuring him. To this end, the servants of the track of an electric street railway, an the railway company are bound to keep a instruction that the motorman must use dilivigilant lookout in front of advancing en- gence to avoid danger to a person on the gines or trains in order to discover persons track, and that the car must be stopped, if exposed to danger on highway crossings, or there is time to stop it, where the person is at other places where they have a legal right in a dangerous position, and if there was to be, and the railway company will be liable time, in the exercise of ordinary care, for a for running over them if, by maintaining such motorman to have stopped the car after seea lookout and by using reasonable care and ing, or after he was bound to see, with ordiexertion to check or stop its train, it could nary care, the dangerous position of the avoid injury to them. The doctrine applies person on the track, and failed to check the where the negligence of the person injured speed of the car, then the defendant was is remote and that of the railway com- guilty of negligence, is not objectionable in pany proximace, for if both be negligent, and not properly stating the theory of "the last the negligence of both be concurrent and di- clear chance.” Indianapolis St. Ry. Co. v. rectly contributing to produce the accident, Seerley, 72 N. E. 169, 1034, 35 Ind. App. 467. then the case is one of contributory negli

The rule that one's neglect to discover gence 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 proxiinate cause of resulting injury is not him in the place of danger and stops there and does not actively continue until the is: What wrongful conduct occasioning an

an arbitrary but a reasonable one. The test 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 com- his alone. If, however, each had such powpany to produce the injury, the company's er and each neglected to use it, then their negligence is the proximate cause, and that

negligence was concurrent, and neither can of the person injured is the remote cause.

recover of the other. The doctrine of "last Drown v. Northern Ohio Traction Co., 81 N. clear chance” will not be extended to cases E. 326, 328, 76 Ohio St. 234, 10 L. R. A. (N. where the plaintiff's own negligence extendS.) 421, 118 Am. St. Rep. 844.

ed 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 Traction Co., 81 N. E. 514, 517, 42 Ind. App. approach of a train, was erroneous. Mis- 395 (citing Indianapolis Traction & Terminal souri Pac. R. Co. v. Bentley, 93 Pac. 150, 152, Co. v. Kidd, 79 N. E. 347, 350, 167 Inä. 402, 78 Kan. 221 (quoting and adopting definition 7 L. R. A. (N. S.) 143, 10 Ann. Cas. 942). in Dyerson v. Union Pac. R. Co., 87 Pac. 680, 74 Kan. 528, 7 L. R. A. [N. S.) 132, 11 Ann. the track of an electric street railway, an in

In an action for injuries to a person on Cas. 207).

struction that the motorman must use diliThe engineer of a train who has given gence to avoid danger to a person on the the danger signal, commencing when a track- track, and that the car must be stopped, if man was seen on the track 600 feet away, there is time to stop it, where the person is and, as soon as he discovers that the man is in a dangerous position, and if there was apparently unconscious of the approach of time, in the exercise of ordinary care, for a the train, adopts every possible means to motorman, to have stopped the car after seeavert the accident, by sounding bell and ing, or after he was bound to see, with ordiwhistle and reversing the engine and putting nary care, the dangerous position of the peron the air brakes, has done his full duty, son on the track, and failed to check the as respects "the last clear chance." Hoffard speed of the car, then the defendant was F. Illinois Cent. R. Co., 110 N. W. 446, 450, guilty of negligence, is not objectionable in 138 Iowa, 543, 16 L. R. A. (N. S.) 797. not properly stating the theory of the “last As applied to an action for injuries to a Seerley, 72 N. E. 169, 170, 35 Ind. App. 467.

clear chance." Indianapolis St. Ry. Co. v. traveler in a collision with a street car, the doctrine of the “last clear chance" is that,

The doctrine of the "last clear chance" even assuming the negligence of plaintiff con

means that notwithstanding the previous neg. tributed to the injury of which he com- ligence of plaintiff, if at the time of the inplains, still if, after the occurrence of such jury it might have been avoided by the excontributory negligence, the employés of de- ercise of reasonable care on the part of defendant saw the dangerous condition in fendant, defendant will be liable for the fail which plaintiff was placed, and by the ex

ure to exercise such care. Hence, where a ercise of ordinary care could have stopped passenger, a girl under 14 years of age, unthe car, and so have avoided injuring him, accustomed to riding on street cars, becomes and failed to do so, the defendant is respon- frightened by the negligence of the defendsible. Henderson v. Los Angeles Traction ant's servants in carrying such passenger Co., 89 Pac. 976, 980, 150 Cal. 689.

past her known destination, and the conduc

tor knows, or by the exercise of due care and The theory of the "last clear opportu- diligence under the circumstances should nity," in the case of injury to one on the know, of such passenger's frightened conditrack by being struck by the engine, is that tion, and that she is about to leave the movthe engineer saw the party injured and real-ing car, it is his duty to exercise the highized her perilous situation and had ample est degree of care possible under the circumopportunity to have avoided the accident by stances to prevent such passenger from the exercise of reasonable caution and care. alighting from the moving car. Kruger v. Zipperlen v. Southern Pac. Co., 93 Pac. 1049, Omaha & C. B. St. Ry. Co., 114 N. W. 571, 1033, 7 Cal. App. 206.

573, 80 Neb. 490, 17 L. R. A. (N. S) 101, 127 Under the doctrine of the "last clear

Am St. Rep. 786. chance," where negligence of defendant is the proximate cause of the injury for which

LAST DESCRIBED suit is brought, and that of plaintiff a remote A deed from a tax collector to the terri. cause only, the plaintiff may recover. In the tory, which recites the assessment and levy case of a person injured at a street railway of taxes for the year on property described crossing, if the motorman saw, or could have as "Cabin and Lot 6 of Block 60 and Cabin seen by the exercise of ordinary care, the and Lot 7 of Block 60" of a city and on persituation of the person in time to have avoid- sonal property, and which states that the ed injuring him, and fails to do so, the rail taxes were delinquent, and that the property road company is liable for his injury, and, was sold to the territory, and which conveys notwithstanding the negligence of the person to the territory “all that lot

of in placing himself in a position of peril, un- land

above and last described in der the doctrine of the “last clear chance," this deed,” conveys only lot 7. Abell v. this operates as an exception to the general Swain, 100 Pac. 831, 832, 12 Ariz. 421. rule forbidding recovery by plaintiff guilty The phrase "last herein described," in a of contributory negligence. It is no depar- finding that a bankrupt was the owner of a ture from just principles, but a wholesome business, together with a leasehold interest and humane doctrine, to hold that if after the premises and the furniture contained the defendant knew, or in the exercise of or therein, and the good will of the business, dinary care ought to have known, of plain- and that he had sold the property “last heretiff's negligence, he could have avoided the in described," confines the sale by the bankaccident, but failed to do so, the plaintiff rupt to a sale of the good will of his business can recover. Grass v. Ft. Wayne & W. Val.' and the furniture used in connection there

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