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Burdette v. Rockville Crane Rental Inc.2/4/2000
e reads as follows: `At all times, the driver of a vehicle on a highway shall control the speed of the vehicle as necessary to avoid colliding with any person or any vehicle or other conveyance that, in compliance with the legal requirements and the duty of all persons to use due care, is on or entering the highway.'
The substance of appellants' request was fairly covered. Appellants, without opposition, clearly emphasized this point during their closing argument to the jury.
Indeed, the jury found that Mr. Johnson had been negligent in the operation of his vehicle. This indicates that the jury was aware that Mr. Johnson's position on the favored road did not immunize him from being found negligent. We find no error.
IV.
Appellants also requested that the trial court give the jury MPJI 19:14, regarding last clear chance. That instruction reads:
A plaintiff who is contributorily negligent may nevertheless recover if the plaintiff is in a situation of helpless peril and thereafter the defendant had a fresh opportunity of which defendant was aware to avoid injury to the plaintiff and failed to do so. [Emphasis added.]
The trial court declined to give this instruction, and appellants now argue that this constituted reversible error.
A court must give a jury instruction requested by a party if (1) the proposed instruction is supported by the facts of the case and (2) the theory of the case is not otherwise adequately covered by other instructions. Mallard v. Earl, 106 Md. App. 449, 469, 665 A.2d 287 (1995). In this case, the facts do not support the issuance of a last clear chance instruction.
The doctrine of last clear chance originated in Davies v. Mann, 10 Mees. & W. 548, 152 Eng. Reprint. 588, 19 Eng. Rul. Cas. 190 (1942) (see Ritter v. Portera, 59 Md. App. 65, 70, 474 A.2d 556, cert. denied, 300 Md. 795, 481 A.2d 239 (1984)). Davies concerned a collision between a carriage and a donkey; the latter had been left by its owner in such a position as to block traffic on the road. The court found for the plaintiff, the owner of the donkey, because even though the animal had obstructed traffic "the defendant [carriage driver] was bound to go along the road at such a pace as would be likely to prevent mischief." Davies, 152 Eng. Reprint. 588. The theory behind the doctrine is that "if the defendant has the last clear opportunity to avoid the harm, the plaintiff's negligence is not a `proximate cause' of the result." W.Prosser, Law of Torts (4th ed. 1971) ยง 66.
Maryland adopted the last clear chance doctrine in Northern Central Railway Co. v. State, use of Adeline Price, 29 Md. 420, 96 Am. Dec. 545 (1868). There the Court of Appeals stated:
The mere negligence or want of ordinary caution on the part of the deceased ... would not disentitle the plaintiff to recover [on behalf of the deceased], unless it were such that, but for such negligence or want of ordinary caution, the misfortune would not have happened; nor, if the defendant might, by the exercise of care on its part, have avoided the consequences of the neglect or carelessness of the deceased.
29 Md. at 436 (citing Davies, 10 M. & W. 545).
The Court has also explained that though the plaintiff may have been guilty of negligence, and that negligence may, in fact, have remotely contributed to the production of the accident, yet, if the defendant could ... by the exercise of reasonable care and diligence, in view of the circumstances of the case, have avoided the accident, the plaintiff's negligence, being the more remote cause, will not excuse the defendant.
Kean v. B. & O. Railr
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