Gibbs v. Mikesell

The opinion of the court was delivered by

Schroder, J.:

This is an appeal from a ruling of the lower court overruling defendant’s demurrer to plaintiff’s second amended petition which pleads a cause of action in common law negligence and, in the alternative, a cause of action under the doctrine of last clear chance.

The fundamental question presented is whether the plaintiff in alleging the doctrine of last clear chance in the second amended petition has alleged facts which admit contributory negligence as a matter of law.

Summarized in part, the allegations of the second amended petition were…