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39 Tenn. L. Rev. 104 (1971-1972)
Last Clear Chance in Tennessee

handle is hein.journals/tenn39 and id is 124 raw text is: LAST CLEAR CHANCE IN TENNESSEE 1. INTRODUCTION In deciding Davies v. Mann' in 1842, the English court probably realized that it was effecting a significant change in the law, but just how significant this change would ultimately be or how much confu- sion would be caused over such a seemingly simple'ruling was ob- viously far-beyond its ken. The facts of the case are relatively simple. The plaintiff left his donkey tethered by the side of the road, and it was run down and injured by the defendant's horse-drawn wagon, which was traveling at a smart pace. The court held that even if the plaintiff was negligent in leaving his donkey by the roadside, the defendant was nevertheless liable for the injury as a result of peril that he had actually discovered or that he should have discovered had he exercised ordinary care. This case has since been followed by Tennessee courts2 and has been discussed by many scholars and authorities on the law of negli- gence.3 The Davies rule has come to be known generally as the doc- trine of last clear chance, but is also known as the doctrine of discov- ered peril or the humanitarian doctrine.' Other designations for the various forms of the doctrine include doctrine of apparent peril, doctrine of discovered negligence, doctrine of subsequent negli- gence, doctrine of intervening negligence, doctrine of superven- ing negligence, known danger rule, and many others unnecessary to list.' The disagreement surrounding the rule of Davies begins with its label and extends to its interpretation. There are varying views as to the requirements and necessary 1. 152 ENG. REPRINT 588 (1842). 2. Todd v. Cincinnati, N.O. & T.P. Ry., 135 Tenn. 92, 185 S.W. 62 (1916); Tennessee Electric Power v. Day, 10 Tenn. App. 334 (1929). 3. W. PROSSER, HANDBOOK OF THE LAW OF TORTS § 66 (4th ed. 1971); 5 PERSONAL INJURY-ACTIONS DEFENSES -DAMAGES § 1.05 (L. Frumer, R. Benoit, M. Friedman, and L. Pilgrim eds. 1967). 4. Tennessee uses all three designations. Last clear chance: Smith v. Burks, 43 Tenn. App. 32, 305 S.W.2d 172 (1957); Harbor v. Wallace, 31 Tenn. App. 1, 211 S.W.2d 172 (1946); Smith v. Beattie, 346 F.2d 139 (6th Cir. 1965); Monday v. Clynes, 212 F.2d 802 (6th Cir. 1954). Discovered peril: Monday v. Clynes, 212 F.2d 802 (6th Cir. 1954); Kilgore v. Greyhound Corp., 30 F.R.D. 385 (E.D. Tenn. 1962). Humanitarian doctrine: Smith v. Burks, 43 Tenn. App. 32, 305 S.W.2d 748 (1957); Stinson v. Aluminum Co. of America, 141 F.2d 682 (6th Cir. 1944). 5. See65 A. C.J.S. Negligence § 136(1) (1966).

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