## Facts

- Clark was on railroad tracks when he was struck by a Boston & Maine Railroad train.
- A train had passed or was passing in one direction, and Clark was struck by another train coming from the opposite direction.
- Clark sued the railroad for negligence, relying on the last clear chance doctrine to recover despite his own apparent negligence in being on the tracks.

## Issues

1. In a negligence case relying on the last clear chance doctrine, whether the burden of proof on the “last chance” elements may be placed on the defendant rather than the plaintiff.
2. Whether the evidence was sufficient to permit recovery under last clear chance, including proof that the railroad’s crew discovered, or should have discovered, Clark’s peril in time to avoid the collision using reasonable means available.

## Decision

- The New Hampshire Supreme Court sustained the railroad’s exceptions.
- The court held it was error to instruct that the defendant had the burden of proof on the last clear chance issue.
- The court concluded the evidence did not support applying last clear chance because there was no adequate proof of the railroad’s actionable negligence at a time when the collision still could have been avoided.
- Judgment was entered for the railroad (or the plaintiff’s verdict was set aside with entry for the defendant).

## Legal Principles

- Last clear chance is not an affirmative defense; it is a plaintiff’s theory of liability that must be proved as part of the plaintiff’s case.
- The plaintiff bears the burden to prove facts bringing the case within last clear chance, including that after the plaintiff was in peril the defendant knew, or in the exercise of due care should have known, of that peril in time to avoid the harm and failed to do so.
- Where the evidence does not reasonably support a finding that the defendant had a later, avoidable opportunity to prevent the injury after the plaintiff’s peril arose, the last clear chance doctrine does not apply and the case should not be submitted to the jury on that theory.

## Conclusion

The court rejected a jury instruction shifting to the railroad the burden of proving the absence of last clear chance and held that, on the evidence presented, last clear chance was unavailable because there was no sufficient proof the train crew discovered or should have discovered Clark’s peril in time to avoid the accident; the railroad therefore was entitled to judgment.


Clark v. Bos. & Me. R.R., 182 A. 175 (N.H. 1935)