¶1dissenting.
¶2I respectfully dissent.
¶3I agree with the majority that because the last clear chance doctrine often involves technical distinctions, courts should be wary in extending the doctrine’s application. I also agree that voluntary intoxication does not excuse negligence and, unquestionably, Pack was negligent.
¶4I do not agree, however, with the majority’s holding that “a person who voluntarily consumes a quantity of intoxicants sufficient to produce . . . unconsciousness is not ‘physically incapacitated’ as contemplated by Vanlandingham [v. Vanlandingham, 212 Va. 856, 188 S.E.2d 96 (1972)].” In my view, a negligent plaintiff who is unconscious, for whatever reason, is physically incapacitated and, therefore, incapable of extricating himself from a position of peril. The purpose of the last clear chance doctrine, also referred to as the humanitarian doctrine, is to protect just such a “helpless plaintiff.”
¶5I fail to see how Vanlandinghamlends support to the majority’s holding. Indeed, in Vanlandinghamwe merely stated that “it is only in those rare instances where the plaintiff is physically incapacitated that we have a ‘helpless plaintifF within the meaning of the last clear chance doctrine.” Id. at 858, 188 S.E.2d at 98. Neither Vanlandinghamnor any of our other cases have held that a plaintiff rendered unconscious by the voluntary consumption of intoxicants is not physically incapacitated within the meaning of the doctrine.
¶6In Washington & O. D. Railroad v. Taylor, 188 Va. 458, 50 S.E.2d 415 (1948), the plaintiffs decedent was struck by a train while lying unconscious on a railroad track. His unconsciousness *332was produced by the voluntary consumption of intoxicants. Applying the last clear chance doctrine, we affirmed a judgment for the plaintiff. The majority, in effect, overrules Taylorand holds that an unconscious, intoxicated person can never be a legally “helpless plaintiff.” This holding is contrary to the great weight of authority in other jurisdictions. See generally Annotation, Last Clear Chance—Intoxicated Person, 26 A.L.R.2d 308 (1952).
¶7The majority goes on to declare that a physical incapacity sufficient to render a plaintiff legally “helpless” under the last clear chance doctrine “must be a condition resulting from non-negligent, non-intentional causes.” (Emphasis added.) This statement is incredible; obviously, the doctrine necessarily presupposes a negligent plaintiff. E.g., Burton v. Oldfield, 194 Va. 43, 48, 72 S.E.2d 357, 361 (1952).
¶8A hypothetical will demonstrate the fundamental fallacy in the majority’s holding. Suppose Pack, in a perfectly sober condition, had driven an automobile on Interstate 581 at a speed in excess of 100 miles per hour, had lost control of the automobile and struck an object on the edge of the highway, and had been thrown unconscious upon the highway in the precise location that he was found in the present case. Suppose further, that in all other respects the facts are identical to those found in the present case. In the hypothetical case, Pack clearly would have been a “physically incapacitated” person within the meaning of the last clear chance doctrine, albeit his incapacity was produced by his negligence.
¶9I submit that the facts of the present case and the hypothetical case are, in principle, indistinguishable, unless we decide, as the majority apparently has, that a helpless, unconscious drunk is beyond the realm of society’s humanitarian concerns. I am unwilling to treat a person insensible from voluntary drunkenness with such disdain. It matters not whether the injured party is unconscious from intoxicants, accident, or illness—a helpless human life is at stake.
¶10The jury, under a proper instruction, found that, notwithstanding Pack’s negligence, his administrator was entitled to rely upon the last clear chance doctrine as the basis for a recovery against a negligent defendant. The trial court approved this finding. Because I believe Pack was physically incapacitated within the *333meaning of the last clear chance doctrine, I, too, would approve the jury’s verdict and allow a recovery.
¶11RUSSELL and THOMAS, JJ., join in dissent.