Rice v. Gideon

I respectfully dissent.

A. Last clear chance instruction was properly given

The trial court gave U.J.I. 12.12 on last clear chance. Defendant objected on the following grounds:(a) no evidence or testimony to support the instruction; (b) no evidence plaintiff could not escape by use of ordinary care; (c) no showing that defendant had knowledge of plaintiff’s peril; (d) no showing defendant had a clear chance to avoid the injury; and (e) it is not a proper statement of the law.

The majority hold that since plaintiff did not plead or try the issue of last clear chance, it was error to give the…