In order to charge one with liability under the doctrine of discovered peril, there must exist a clear chance to avoid injury which could have been reasonably perceived by the party sought to be held. Terry v. English, 130 Tex. 632, 112 S.W.2d 446; Schuhmacher Co. v. Posey, 147 Tex. 392, 215 S.W.2d 880; Morreale v. Cohen, 158 Tex. 291, 310 S.W.2d 737; Welch v. Ada Oil Co., Tex.Civ.App., 302 S.W.2d 175, wr. ref. n. r. e. It is undisputed that immediately before the collision the driver of the Plymouth automobile was unable to control the movement and direction of his car.
An analysis of the above recited facts leads to the conclusion that there is no evidence from which one can reasonably conclude that Cofield had a last clear chance. To charge liability under the doctrine of discovered peril there must exist a clear chance to avoid injury which could have been reasonably perceived by the party sought to be held. R. T. Herrin Petroleum Transport Co. v. Proctor, 161 Tex. 222, 338 S.W.2d 422; Terry v. English, 130 Tex. 632, 112 S.W.2d 446; Schuhmacher Co. v. Posey, 147 Tex. 392, 215 S.W.2d 880; Morreale v. Cohen, 158 Tex. 291, 310 S.W.2d 737, and Welch v. Ada Oil Co., Tex.Civ.App., 302 S.W.2d 175, writ ref., n.r.e. Under the facts of this case Cofield could only guess that to have earlier taken to the shoulder and stopped would be a safe place for his vehicle and that he could thus avoid the oncoming car. From the standpoint of appearances the movement of the Oldsmobile was wholly unpredictable. From Cofield's standpoint, considering the movement of the car just before the accident, it would be entirely reasonable to apprehend that the vehicle would continue in its northwesterly course and go off into the ditch on the north side.
"We are unable to agree with any of these theories. In order to charge one with liability under the doctrine of discovered peril, there must exist a clear chance to avoid injury which could have been reasonably perceived by the party sought to be held. Terry v. English, 130 Tex. 632, 112 S.W.2d 446; Schuhmacher Co. v. Posey, 147 Tex. 392, 215 S.W.2d 880; Morreale v. Cohen, 158 Tex. 291, 310 S.W.2d 737; Welch v. Ada Oil Co., Tex.Civ.App., 302 S.W.2d 175, wr. ref. n.r.e."
If the accident happened as plaintiff said it did and as we have summarized his evidence above, then the situation could not have been one of discovered peril as that doctrine has been treated by the Supreme Court. For instance, in R. T. Herrin Petroleum Transport Co. v. Proctor, Sup., 338 S.W.2d 422, 429, the Court said: 'In order to charge one with liability under the doctrine of discovered peril, there must exist a clear chance to avoid injury which could have been reasonably perceived by the party sought to be held,' citing Terry v. English, 130 Tex. 632, 112 S.W.2d 446; Schuhmacher Co. v. Posey, 147 Tex. 392, 215 S.W.2d 880; Morreale v. Cohen, 158 Tex. 291, 310 S.W.2d 737; Welch v. Ada Oil Co., Tex.Civ.App., 302 S.W.2d 175, wr. ref., n.r.e. Taking into consideration the fact that when plaintiff was 'trotting' toward Clark he was also 'trotting' toward the truck, which he admitted he had in view at all times, it is hard to perceive how Clark should have been any more aware of danger than plaintiff was himself.
Accord, Texas Pac. R. Co. v. Brown, 142 Tex. 385, 181 S.W.2d 68; Texas N. O. R. Co. v. Wagner, Tex.Civ.App., 262 S.W. 902, 906. After defendant discovered the danger, the brief time interval of slightly more than one second is too short to afford defendant that opportunity embraced in a last chance, which must be a clear one. Morreale v. Cohen, Tex., 310 S.W.2d 737; Schuhmacher Co. v. Posey, 147 Tex. 392, 215 S.W.2d 880. He was entitled to enough time to think, appreciate, decide and act, and defendant did not have that time in this case. Schuhmacher Co. v. Posey, supra; Welch v. Ada Oil Company, Tex.Civ.App. 302 S.W.2d 175; Dupree v. Burlington-Rock Island R. Co., Tex.Civ.App., 251 S.W.2d 559; Martin v. Texas N. O. R. Co., Tex.Civ.App., 236 S.W.2d 567; Surkey v. Smith, Tex.Civ.App., 136 S.W.2d 893.