Rothrock v. McCollister

A pedestrian crossing a highway was injured by an automobile and brought this action against the defendant motorist. From a judgment for the defendant, the plaintiff appeals.

The assignments of error challenge the refusal of the trial court to instruct the jury upon the plaintiff’s theory of “last clear chance.”

The question for decision is whether the court must instruct upon an issue, and a legal theory, for which there is some support in the evidence, but for which there is no foundation in the pleadings. For the purposes of this appeal we assume, without deciding, that evidence can be found…