## Facts

- An 18-year-old pedestrian, Cleland P. Odekirk, was struck by John D. Austin’s car near Seventh Avenue and West McDowell Road in Phoenix on April 17, 1957, around 5:15 p.m., on a clear, dry day.
- Odekirk exited a car at the intersection, crossed, then ran west; he later testified he did not remember leaving the sidewalk.
- An eyewitness motorist observed Odekirk running west in the westbound lane about 1.5 feet from the north curb, then moving farther south into the roadway.
- The eyewitness saw Austin’s car approaching from behind at about 15–16 mph and estimated 5–7 seconds elapsed between first seeing Odekirk in the lane and the collision.
- Austin testified he did not see Odekirk until an instant before impact, braked immediately, and could not stop; the impact occurred a little over four feet south of the north curb.
- Odekirk sued for negligence through his guardian ad litem; Austin asserted contributory negligence.
- A jury returned a verdict for Austin; the trial court denied a new trial and refused to instruct on last clear chance.

## Issues

1. Whether the evidence required submitting the doctrine of last clear chance to the jury, making it error to refuse the requested instruction.

## Decision

- The Arizona Supreme Court reversed the judgment for Austin and remanded for a new trial.
- The court held the refusal to instruct on last clear chance was prejudicial error because the record contained evidence from which a jury could find the doctrine applicable.
- Viewing the evidence most favorably to Odekirk, a jury could conclude Austin did not actually see Odekirk until just before impact, but should have seen him earlier through reasonable vigilance.
- The eyewitness testimony regarding low speed and several seconds of visibility supported an inference that Austin had a clear opportunity to avoid the collision by earlier braking or evasive action.

## Legal Principles

- A party is entitled to a requested jury instruction on a theory of recovery if there is evidence from which a reasonable jury could find the doctrine’s elements satisfied.
- Last clear chance permits recovery notwithstanding a plaintiff’s contributory negligence if, after the plaintiff is in peril, the defendant discovers or should discover the peril in time and then has a clear opportunity, by ordinary care, to avoid the injury but fails to do so.
- On review of refusal to instruct, the evidence and reasonable inferences are taken in the light most favorable to the requesting party.
- Contributory negligence does not bar recovery when the trier of fact could find the defendant had the final effective opportunity to prevent the harm.

## Conclusion

Because the evidence supported a finding that the driver should have perceived the pedestrian’s danger with sufficient time to avoid the collision, the last clear chance doctrine had to be submitted to the jury; the defense verdict was reversed and the case remanded for a new trial with the proper instruction.


Odekirk v. Austin, 366 P.2d 80 (Ariz. 1961)