Widow Can Use ‘Last Clear Chance’ to Sue Railroad

An executor can sue a railroad company whose train fatally struck her husband, who was walking adjacent to railroad tracks, listening through earbuds to music on his cell phone, when he was struck by a part of the train that extended from the side and hit him in the head and shoulders; plaintiff alleged the train operators observed her husband from several hundred yards away and had a “last clear chance” to avoid injury to him, and the Virginia Supreme Court says the trial court erred in dismissing her suit as barred by her husband’s contributory negligence.

Inattentive plaintiff

At present, this court has only recognized two types of plaintiff who may avail themselves of the last clear chance doctrine. The first type of plaintiff, the helpless plaintiff, is a plaintiff who negligently placed himself in a situation of peril from which he is physically unable to remove himself. In the case of a helpless plaintiff, the defendant is liable if he saw, or should have seen, the plaintiff in time to avert he accident by using reasonable care.

The present case deals with the second type of plaintiff, the inattentive plaintiff. An inattentive plaintiff is one who has negligently placed himself in a situation of peril from which he is physically able to remove himself, but is unconscious of peril. In the case of an inattentive plaintiff, the defendant is liable only if he saw the plaintiff and realized, or ought to have realized, the plaintiff’s peril in time to avert the accident by using reasonable care.

There can be little doubt that, under Greaar v. Noland Co., 197 Va. 233 (1955), plaintiff’s third amended complaint contains sufficient allegations to survive demurrer. Plaintiff alleged her husband was unaware of his peril, that the train conductor and train engineer saw her husband, that they knew or should have known he was in peril and that they had sufficient time to take action to avoid the accident, had they used reasonable care.

Defendants argue that neither Greaar nor the last clear chance doctrine applies to the present case because decedents’ negligence continued up to the point of the accident, thereby making it a proximate cause of his injuries.

In the years since Greaar, this court has not once ruled that a plaintiff’s continuing negligence alone bars application of the last clear chance doctrine. Since Greear, there have only been two cases involving the last clear chance doctrine where this court has even mentioned a plaintiff’s continuing negligence. Notably, both cases turned on the fact that defendant had no clear opportunity to avoid the accident and not, as defendants insist, on the fact that the plaintiffs’ negligence continued up to the point of the accident.

The last clear chance doctrine is merely the application of another, well established principle of law: that a defendant’s negligence can be an efficient intervening cause of an accident which renders a plaintiff’s contributory negligence remote. Contrary to defendants’ argument, the fact that decedent’s negligence continued up to the point of the accident, without more, does not bar application of the last clear chance doctrine.

Whether decedent’s negligence was willful and wanton is a question of fact upon which reasonable persons could disagree. Given the present posture of the case, any determination regarding the nature of decedent’ negligence is premature.

Decision sustaining defendants’ demurrer is reversed and case remanded.

Concurrence

McClanahan, J.: I agree that the third amended complaint contains sufficient allegations to survive the demurrer. I also agree that the trial court erred in dismissing the third amended complaint because, as the court concludes, the continuing nature of a plaintiff’s contributory negligence does not automatically bar application of the last clear chance doctrine. I write separately to emphasize that at trial, plaintiff will bear the burden of presenting sufficient evidence of each element of the last clear chance doctrine to require a jury instruction on last clear chance. We have not had occasion to consider whether the doctrine would apply if the trial evidence established that a victim’s inattentiveness was produced by the voluntary obstruction of his senses.

Coutlakis v. CSX Transportation Inc. (Powell) No. 160277, March 9, 2017; Richmond Cir.Ct. (Markow, J.D.) Guy C. Crowgey, David O. Prince, Robert T. Vaughan  for appellant; Dustin M. Paul, Edward J. Powers, Sean M. Golden for appellees. VLW 017-6-017, 10 pp.