Sergeant Regis counters that the Cooper case is distinguishable in that it involved an uncontrolled crosswalk; whereas, the intersection in this case was controlled by “both traffic lights and Walk/Don't Walk lights.” Sergeant Regis contends that that this case is akin to St. Amant v. Travelers Ins. Co., 233 So.2d 23 (La.App. 4th Cir.1970). In St. Amant, supra, the motorist proceeded in a cautious manner into the intersection with the benefit of a green light.
We find three of defendants' cases distinguishable. Ritter v. Southern Farm Bureau Cas. Ins. Co., 321 So.2d 46 (La.App. 3d Cir. 1975), writ refused, 325 So.2d 586 (La. 1976); Comeaux v. State Farm Mutual Auto. Ins. Co., 231 So.2d 674 (La.App. 1st Cir. 1970), writ refused, 256 La. 69, 235 So.2d 96 (1970); St. Amant v. Travelers Ins. Co., 233 So.2d 23 (La.App. 4th Cir. 1970). In all of the above cases, the motorist was not negligent since he discovered the pedestrian as soon as it was possible for him to do so, and did all in his power to avoid the collision.
Therefore, a pedestrian is charged with a duty to observe approaching traffic on attempting to cross a street or roadway. Thissel v. Commercial Union Ins. Co., 476 So.2d 851 (La.App. 2d Cir.), writs denied, 479 So.2d 361, 479 So.2d 366 (La. 1985); Finley v. North Assur. Co. of Am., 476 So.2d 837 (La.App. 2d Cir. 1985); St. Amant v. Travelers Ins. Co., 233 So.2d 23 (La.App. 4th Cir. 1970). We note there was testimony that it was difficult for the pedestrians to see approaching traffic due to the visual obstruction caused by the illegally parked cars.
Thus, last clear chance does not come into play until the evidence shows negligence on the part of both the plaintiff and the defendant. Hebert v. Meibaum, 209 La. 156, 24 So.2d 297 (1945); Butler v. State Farm Mutual Automobile Insurance Co., 265 So.2d 252 (La.App. 1 Cir. 1972); St. Amant v. Travelers Insurance Company, 233 So.2d 23 (La.App. 4 Cir. 1970); Malone, Torts, 22 La.L.Rev. 338, 344 (1962)."
Thus, last clear chance does not come into play until the evidence shows negligence on the part of both the plaintiff and the defendant. Hebert v. Meibaum, 209 La. 156, 24 So.2d 297 (1945); Butler v. State Farm Mutual Automobile Insurance Co., 265 So.2d 252 (La.App. 1 Cir. 1972); St. Amant v. Travelers Insurance Company, 233 So.2d 23 (La.App. 4 Cir. 1970); Malone, Torts, 22 La.L.Rev. 338, 344 (1962). The jurisprudence has established that the essential elements of that doctrine are that: 1) the plaintiff was in a position of peril of which he was unaware or from which he was unable to extricate himself; 2) the defendant actually discovered the plaintiff's peril or could have, by the exercise of ordinary and reasonable care, discovered the plaintiff's peril; and, 3) at that time, the defendant could have, with the exercise of ordinary and reasonable care, avoided the accident.
In order to apply the doctrine there must be negligence on the part of both parties. St. Amant v. Travelers Insurance Company, 233 So.2d 23 (La.App. 4th Cir. 1970). We conclude, based on the factual context of this case, that the Last Clear Chance doctrine is not applicable herein for either of two reasons: (a) The trial judge concluded that the plaintiff failed to prove any actionable negligence on the part of the defendant and we find no manifest error in that conclusion; (b) Plaintiff failed to prove one of the essential facts required to apply the doctrine, i. e. that she was in a position of peril of which she was unaware.
" Defendants' reliance on St. Amant v. The Travelers Insurance Company, 233 So.2d 23 (La.App. 4th Cir. 1970), is similarly unwarranted, inasmuch as St. Amant involved a factual situation where the plaintiff pedestrian attempted to cross an intersection while the defendant vehicle was proceeding into the intersection at a safe rate of speed with a green semaphore traffic light in the motorist's favor, thus being another case where the motorist rather than the pedestrian had the right of way. In the instant case the pedestrian enjoyed the right of way and was not required to forfeit such right of way to the approaching defendant motorist, but on the contrary, was justified in continuing to exercise his right of way under the circumstances and was not guilty of contributory negligence, of. Dennison v. Commercial Standard Insurance Company, 243 So.2d 851 (La.App. 2nd Cir. 1971)
The doctrine of last clear chance can apply only when both plaintiff and defendant are negligent. St. Amant v. Travelers, Ins. Co., 233 So.2d 23 (La.App. 4th Cir. 1970); Tabor v. Southern Farm Bureau Casualty Insurance Company, 281 So.2d 824 (La.App. 1st Cir. 1973). Having found that defendant was negligent and plaintiff was free of negligence, this doctrine is inapplicable.
In order to apply this doctrine, negligence must be present on the part of both plaintiff and defendant. St. Amant v. Travelers Insurance Company, 233 So.2d 23 (La.App. 4th Cir. 1970). Assuming arguendo that the plaintiff was walking in the roadway with his back to overtaking traffic, the testimony of Mr. Eglin is convincing that plaintiff and Miss Sibley were in the roadway for such a length of time that Miss Dixon could and should have seen them.
However, Barry was charged with the duty of observing approaching traffic in attempting to cross a street or roadway, which he breached. St. Amant v. Travelers Insurance Company, 233 So.2d 23 (La.App., 4th Cir. 1970). He could have certainly waited until the obstruction passed and he could clearly see in that direction.