## Facts

- An elderly man (over seventy) drove a one-horse wagon toward a private railroad crossing he had used for years.
- He approached and entered the crossing without stopping to look or listen for an oncoming train; witnesses described his head as down.
- The railroad’s train was running late and traveled about 40 mph, faster than usual.
- The track was straight, and the wagon was visible to the engineer from roughly 660 feet away.
- Evidence indicated the train could have been stopped within about 200 feet at the speed it was traveling.
- The engineer did not slow or stop; he sounded the whistle about twenty seconds before impact.
- The train struck the wagon at the crossing, killing the driver instantly.
- The plaintiffs (the decedent’s children) sued for wrongful death, alleging negligent operation after the decedent’s peril was or should have been discovered.

## Issues

1. Whether the decedent’s contributory negligence in failing to look and listen barred recovery as a matter of law.
2. Whether the last clear chance (discovered peril) doctrine permitted liability when the engineer saw or should have seen the decedent in peril and still had time and distance to avoid the collision.
3. Whether the evidence required submission to the jury on a theory that the railroad’s later negligence (or gross negligence) became the controlling proximate cause despite the decedent’s prior negligence.

## Decision

- The Mississippi Supreme Court reversed the defense verdict and remanded for a new trial.
- The court held that a defendant with the last clear opportunity to avoid harm may be held responsible notwithstanding the plaintiff’s prior negligence.
- The evidence was sufficient for a jury to find the engineer, after discovering or having reason to discover the wagon’s peril, failed to use reasonable care to prevent the collision.
- The court treated the engineer’s failure to act, if found, as later negligence capable of superseding the effect of the decedent’s contributory negligence for purposes of liability.

## Legal Principles

- Contributory negligence does not defeat recovery when the defendant, by exercising reasonable care after discovering (or having reason to discover) the plaintiff’s peril, could have avoided the injury (last clear chance / discovered peril).
- Under last clear chance, the party with the final clear opportunity to avert the accident may be treated as solely responsible when that opportunity is negligently disregarded.
- Where the defendant’s conduct is willful, wanton, or amounts to gross negligence, contributory negligence is not a defense.
- In determining applicability of last clear chance, the jury may consider visibility, distance, stopping capability, warnings given, and the plaintiff’s ability (or inability) to extricate himself from danger once committed to the crossing.

## Conclusion

The court held that despite the decedent’s negligent failure to look and listen, the case should have gone to the jury because the engineer allegedly saw or should have seen the wagon in a dangerous position with sufficient time and distance to slow or stop; under last clear chance, the railroad could be liable for failing to avoid the fatal collision.


Fuller v. Ill. Cent. R.R. Co., 100 Miss. 705, 56 So. 783 (Miss. 1911)