On July 5, 1963, five year old Douglas Wright was visiting relatives near Tupelo, Mississippi, with his parents, Albert and Grace Wright. At approximately 9:35 A.M. Albert Wright took Douglas across U.S. Highway 45, which runs in front of the relative's home, to a small grocery store to buy some milk for the child's breakfast. Mr. Wright left Douglas at the store and recrossed the highway to help his brother polish a truck. A few minutes later Douglas attempted to recross the highway alone and was struck by a Standard Oil Company gasoline truck driven by Dennis Tutor. As a result of the accident the child's spinal cord was completely transected, and he was left a paraplegic.1 Douglas has no feeling from his waist down, cannot use his legs, and has no control over his bladder and bowel functions. Extensive medical treatment has been required to maintain the boy's life functions, as well as, to bring him to a level at which he can participate in some normal activities. He has had thirteen different operations, has participated in a comprehensive rehabilitation program administered at a specialized institution and at home, and recently had a spinal fusion to correct an abnormal curving of the spine.2 Douglas has made good progress however, and as he has grown older has been able to assume more responsibility for his own maintenance. He still requires daily nursing care, and since the accident his mother has been primarily responsible for the nursing services required by her son.3

This diversity suit was brought by Mr. and Mrs. Wright, citizens of Indiana, against Standard Oil Company, a Kentucky corporation, D. L. Collums, Standard's local agent for Tupelo, Mississippi, and Dennis Tutor, a Mississippi citizen and the driver of Standard's truck. The Wrights sought damages for the loss of their son's services and for past and future medical expenses arising from the accident. After a trial to the court, Tutor was found negligent because he failed to keep a proper lookout and could have avoided hitting the child if he had exercised ordinary care; his negligence was a proximate cause of the accident. Grace Wright was not found negligent, but her husband Albert Wright was contributorily negligent in giving his son an opportunity to cross the dangerous highway alone. The father's negligence was also a proximate cause of the accident. The Wrights were found to have suffered damages of $187,104.92. Included in this amount was $115,760 for the value of Mrs. Wright's past and future nursing services.4

When the Mississippi Comparative Negligence Statute5 was applied, the court concluded that Mr. Wright's negligence had contributed two-thirds to the accident, while Tutor's negligence had contributed the other one-third. The damages were consequently reduced by two-thirds leaving a final award of $62,368.31 on which judgment was entered. Mr. and Mrs. Wright appeal from this judgment.

The trial court held that "Albert Wright is the sole owner of the parent's right of action for the consequential damages for the loss of Douglas' services during minority and expenses of his cure." Wright v. Standard Oil Co., 319 F. Supp. 1364, 1374 (N.D.Miss., 1970). On this basis all damages were reduced by the father's two-thirds comparative negligence. The appellants contend that the trial court erred in this holding and in reducing all damages. The issue is whether a wife, in the parents' action arising from an injury to their minor child, has a legally protected interest independent of her husband. This is a question of first impression in Mississippi, and we are Erie bound to decide it as would a Mississippi court. Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). Other issues concern the lower court's ruling on the application of the last clear chance doctrine, the decision that Mr. Wright was negligent, and the decision that Mr. Wright's negligence contributed two-thirds to the cause of the accident.

Before we decide whether Mrs. Wright has an interest independent of her husband, we consider briefly the choice-of-law problem raised by this issue. Because the Wrights are domiciliaries of Indiana and have their marital domicile there, appellees advance the theory that whether Mrs. Wright has an interest apart from her husband in the parents' action should be determined by Indiana law rather than Mississippi law; they characterize the problem as one of status involving the husband-wife relationship, or perhaps they feel that the policies underlying Indiana law could be significantly advanced through its application to this issue. We agree with the trial court that a Mississippi court would apply Mississippi law to all the issues raised in this case.

A federal court sitting in a diversity case must apply the choice-of-law rules of the forum state. See Erie R. R. Co. v. Tompkins, supra; Klaxon Co. v. Stentor Mfg. Co., 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941); Alabama Great S. R. v. Allied Chemical Corp., 467 F.2d 679 (5th Cir., 1972). The Mississippi Supreme Court has abandoned the strict place of the injury rule as the standard for choosing the applicable law in a muti-state tort case. Mitchell v. Craft, 211 So. 2d 509 (Miss., 1968). The court adopted an approach based on Sec. 145 of the Restatement (2nd) of Conflict of Laws and on the views of Professor Robert Leflar.6 211 So.2d at 514-517.

We have considered appellees' argument that Indiana law should be applied in the context approved by Mitchell v. Craft, supra. We have no doubt that a Mississippi court would decide that Mississippi has the most significant relationship to the parties and the occurrence and would, therefore, apply its own law to decide this issue. Mississippi is the place where the injuries occurred, the place where the conduct causing the injuries occurred, and either the domicile or the place of business of the appellees.

Although Indiana is the Wrights' marital domicile and has a statute regulating who may sue for injuries to a child,7 we do not believe a Mississippi court would apply this statute.

In Mitchell v. Craft the Mississippi Supreme Court stated that "an important consideration is the application of the better rule of law." 211 So. 2d at 514. A Mississippi court would recognize that the Indiana statute may contravene the equal protection clause of the Fourteenth Amendment under the rationale of Reed v. Reed, 404 U.S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225 (1971), and in view of the possible constitutional difficulties, we feel a Mississippi court would opt for its own law. Especially is this true in the instant case where Indiana's only contact with the parties or the occurrence is that it is the appellants' domicile. In other situations this single contact might achieve greater significance; for example, if the Indiana statute was designed to promote harmony or prevent discord in the marital relationship, or to prevent collusive suits between spouses, then perhaps there would be an Indiana policy which would be advanced by applying its statute. However, applying this statute to our facts to determine whether Mrs. Wright has an interest in the parents' claim would not seem to advance the policy underlying the statute which is not to protect the marital relationship. See Mayhew v. Burns, 103 Ind. 328, 2 N.E. 793 (Ind.1885); Thompson v. Town of Ft. Branch, 178 N.E. 440 (Ind.1831). While this statute may advance Indiana policies when Indiana is the forum, those policies would not be furthered by applying the statute in a Mississippi forum. For this reason, Mississippi would look solely to forum law. This brief analysis illustrates several grounds upon which to deny the application of Indiana law. When considered together, they confirm our conviction that a Mississippi court would apply forum law to determine whether Mrs. Wright has an interest in the parents' claim apart from her husband.

Having concluded that Mississippi law should be applied, we move now to the resolution of the substantive issues.

The district court reasoned that because a father has the primary obligation to support his minor child he is the sole owner of the parents' suit for consequential damages suffered as a result of the child's injury. In addition, the court treated Mrs. Wright's nursing services as a part of the husband's consortium, to which he is entitled because of the marital relation, and thus concluded that Mr. Wright was alone entitled to recover the reasonable value of Mrs. Wright's services. There is a twostep analysis present here. The father is the sole owner of the parents' right of action because he has the primary obligation of support; secondly, as the sole owner of the right, he is entitled to all the damages. Thus all damages must be reduced by his comparative negligence-a portion of the damages cannot be segregated and remain immune from the application of the comparative negligence standard. Our interpretation of Mississippi law, influenced by contemporary concepts concerning the rights of women, causes us to reject the conclusions reached by the court below and urged on us by the appellees.

In order to decide whether Mrs. Wright has an independent interest in the parents' right of action, we must identify the elements of damage which comprise it. First is the value of the lost services of the child until majority; second is the medical expense incurred to cure the child's injuries. Our case requires a further breakdown of the medical expenses into those arising from the nursing services provided by Mrs. Wright and all other expenses exclusive of the nursing services. Our discussion will proceed accordingly.

Mississippi statutorily established the equality of parents in dealing with their children in section 399 of the Mississippi Code. This statute is particularly relevant concerning the right to services and earnings of a minor. It provides:

"The father and mother are the joint natural guardians of their minor children and are equally charged with their care, nurture, welfare and education, and the care and management of their estates. The father and mother shall have equal powers and rights, and neither parent has any right paramount to the right of the other concerning the custody of the minor or the control of the services or the earnings of such minor, or any other matter affecting the minor. . . ."

Miss. Code Ann. Sec. 399 (1956). The district court felt that this statute was not dispositive because "the state Supreme Court has never interpreted it to relieve the father of his primary right and duty [evidently referring to the duty of support], nor has it ever qualified the father's right to sue upon, or waive, the parent's separate cause of action." Rasch v. Rasch, 250 Miss. 885, 168 So. 2d 738 (1964), was cited as support for the court's decision to disregard the statute. Rasch deals with the continuing duty of a father to support his offspring even after divorce and award of custody to the mother. The case does not consider the problem of which parent is entitled to the earnings and services of a child, nor does it purport to interpret Sec. 399.8

We have found only one case which squarely considers this problem, Standard Dredging Corp. v. Henderson, 150 F.2d 78, 81 (5th Cir., 1945). This court, relying on Sec. 399, recognized that a mother and father were equally entitled to their son's wages. The fact that the action was one for wrongful death does not derogate from the court's holding.

There are apparently no Mississippi decisions interpreting this statute on facts similar to ours. In these circumstances we are left with the facial commands of the statute and the persuasive authority of the Henderson case. The statute unequivocally says that parents have an equal right to the services and earnings of their child. We cannot conclude therefore that simply because a father is said to have the primary duty of support, he also has the paramount right to his child's earnings and services. As the district court noted: "In the parent's action the basis for recovering loss of services is the duty of the child to render to its parent such services or earnings as may reasonably be expected, . . . ." 319 F. Supp. at 1374. In Mississippi the parents have an equal expectation to the services and earnings of their child. In other words, a child's duty to his father does not predominate over the child's duty to his mother. To allow a child's father to recover the entire amount of damage attributable to the loss of a child's services would be contrary to the rationale underlying the right of action in addition to violating the express provision of Sec. 399.

We hold that the district court erred in reducing the damages attributable to the loss of the child's earnings by the father's comparative negligence. The mother should be allowed $3000, and the father's $3000 should be reduced by two-thirds.9

The second element of damages in a parents' suit arising from injuries to their minor child is for medical expenses caused by the injuries. Of the $181,104.92 of accrued and future medical expenses, $115,760 is derived from the value of actual and prospective nursing services rendered by Mrs. Wright to her son. Mrs. Wright argues that this amount should not have been reduced by her husband's comparative negligence. We agree.

The trial court's conclusion that the damages referable to Mrs. Wright's nursing services must be reduced by her husband's comparative negligence was reached in part by the analysis described above;10 that is, because the father is primarily liable for the support of his children, he is the sole owner of the parents' action and thus all damages are his alone and must be reduced by his negligence. It does not follow, however, that because a father is said to be primarily liable for the support of his minor children he should be deemed the sole owner of the parents' cause of action.11 The initial flaw in this conclusion is exposed when the cases cited to support it are examined. For example, in Boyett v. Boyett, 152 Miss. 201, 119 So. 299 (1928), the court held only that a father must continue to support his child after he and the child's mother are separated. A divorced father must also provide for his child's college education to the extent of his financial ability if the child is "worthy of and qualified for" such an education. Pass v. Pass, 238 Miss. 499, 118 So. 2d 769, 773 (1960). Rasch v. Rasch, 250 Miss. 885, 168 So. 2d 738, 744 (1964), reaffirms the rule that a father's duty to support his children continues after a divorce or the awarding of custody to the mother. McInnis v. McInnis, 227 So. 2d 116 (Miss., 1969), is to the same effect although the court there recognized that under Sec. 2743 of the Mississippi Code a divorce court could compel a wife to contribute monetarily to the support of the children of the marriage. In each of these cases the courts label the father's duty as "primary," but that characterization was not necessary to the result reached in any of the cases. These cases arose in a divorce or separation setting. When considered in this context, they do little more than hold that a father who sires offspring in the marriage remains liable, in a monetary sense at least, for the support of his offspring notwithstanding his divorce or separation from their mother.12 We cannot import a deeper meaning than this to these cases. They do not directly support the conclusion that a father should be termed the sole owner of the parents' cause of action; and they do not persuade us to reach this result by deduction.

Appellees also rely on the general language of Lane v. Webb, 220 So. 2d 281, 285 (Miss., 1969), that:

"Medical and hospital expenses of a minor or obligations and debts of the father. Where the father has incurred or paid them, he has the right to bring a separate suit for them."

The issue in that case was not whether the child's mother could maintain an action, nor whether the mother could recover for her nursing services. The issue was rather whether a father suing as next friend of his minor child could recover, in favor of his child, damages attributable to the medical expenses incurred by the father as a result of the child's injuries. The court reversed an earlier decision, St. Regis Paper Co. v. Seals, 211 So. 2d 547 (Miss., 1968), which held that these damages could only be recovered in a separate suit by the father, and held that the father's claim to these damages was waived in favor of his child and could be recovered in a single suit by the father as next friend. Lane is clearly distinguishable from the case at hand. When the language quoted above is considered with the remainder of the court's opinion in light of the issue raised, its significance to the issue facing us is minimal.

Moreover, when the attitude of Mississippi toward women is considered with the conclusion that our case does not fit within the mold of cases cited to uphold the obligation to support-sole owner of the cause of action rationale, we cannot deny Mrs. Wright a legally protected interest in the value of her nursing services.

Mississippi has removed the disabilities attached to women as a result of the marital relationship.13 Section 399 of the Mississippi Code has already been examined in connection with Mrs. Wright's interest in the damages arising from the loss of her son's earnings and services. We reached the conclusion that this statute is a Mississippi exception to the asserted general rule that a father has the paramount right to his child's earnings and services. The question whether Mrs. Wright has an interest, apart from her husband, in the value of her nursing services is not answered by Sec. 399. This statute illustrates, however, that Mississippi does not regard women as second class citizens. It is indicative of a policy to treat women with equality and not to relegate them to a secondary status when they get married. Section 451 of the Mississippi Code is even stronger evidence of this policy. It provides:

"Married women are fully emancipated from all disability on account of coverture; and the common law as to the disabilities of married women and its effect on the rights of property of the wife, is totally abrogated, and marriage shall not impose any disability or incapacity on a woman as to the ownership, acquisition, or disposition of property of any sort, or as to her capacity to make contracts and do all acts in reference to property which she could lawfully do if she were not married; but every woman now married, or hereafter to be married, shall have the same capacity to acquire, hold, manage, control, use, enjoy, and dispose of all property, real and personal, in possession or expectancy, and to make any contract in reference to it, and to bind herself personally, and to sue and be sued, with all the rights and liabilities incident thereto, as if she were not married."

With the exception of the clause giving a married woman a cause of action for loss of her husband's consortium, this statute has existed in its present form since 1906. It thus evidences a long standing policy that women should be treated equally. The recent addition of the clause allowing a married woman to sue for loss of consortium demonstrates that this is a viable policy. While it is doubtful that the legislature considered a situation like ours when it passed this statute, it nevertheless supports our allowing Mrs. Wright to recover the full value of her nursing services undiminished by her husband's comparative negligence.14

A recent decision of the Mississippi Supreme Court lends additional support to our conclusion that the district court's decision regarding Mrs. Wright's nursing services cannot be sustained. The issue in Cooke v. Adams, 183 So. 2d 925 (Miss., 1966) was whether a married woman's estate was liable for medical services rendered to the decedent prior to her death. The lower court denied the claim on the authority of McLemore v. Riley's Hospital, Inc., 197 Miss. 317, 20 So. 2d 67 (1944), which held that in the absence of an express agreement by the woman to pay for the services her husband was obligated to pay for them as necessities. Obviously, Cooke is factually distinguishable from our case. That, however, does not diminish the relevancy of the following statement by the Cooke court in its overruling of McLemore:

"We have re-examined McLemore, supra, and have concluded that an unwarranted restriction was engrafted upon Mississippi Code Annotated section 451 (1956) dealing with the emancipation of married women. That section, first enacted in 1880, concludes with a provision that a married woman shall have the same capacity '* * * to bind herself personally, and to sue and be sued, with all the rights and liabilities incident thereto, as if she were not married.'

____

* * *

"The public policy of this State with respect to this subject is founded upon Article 94 of the Mississippi Constitution, and is spelled out in section 451, supra. The necessity for reconsideration of the rule stated in McLemore, supra, is pointed up not only by the result of its application to the facts in this case, but also by a clearly discernible nation-wide trend, of both state and federal legislation, to expand rather than to restrict the economic and personal emancipation of women and their ever increasing participation in business and professional affairs."

183 So.2d at 926-27 (emphasis added). The court went on to hold that the decedent's estate was liable for medical expenses under an implied contract theory.

The significance of Cooke v. Adams to our case lies in the italicized portion of the preceding quote. This statement convinces us that even though Sec. 451 may not be directly applicable to our facts, the result we have reached is in accord with the view of the Mississippi Supreme Court. Denying Mrs. Wright an interest in the parents' action is a restrictive view regarding the economic and personal emancipation of women, and we decline to adopt it.15

Our decision that Mrs. Wright has a legally protected interest in the damages attributable to the loss of her son's services, as well as in the value of her nursing services, is consistent with the Mississippi rule which does not impute a husband's negligence to his wife merely because of the marriage. See, e. g., Woodward v. St. Louis-San Francisco Ry., 418 F.2d 1305 (5th Cir., 1969); Marr v. Nichols, 208 So. 2d 770 (Miss., 1968); McCorkle v. United Gas Pipeline Co., 253 Miss. 169, 175 So. 2d 480 (1965); Illinois Cent. Ry. v. Brashier, 224 Miss. 588, 80 So. 2d 739 (1955). It is incongruous to recognize that Mississippi does not impute negligence to Mrs. Wright and then to reduce the damages arising from her nursing services by two-thirds because of her husband's negligence. What the trial court purported to give with one hand was quickly taken away with the other. It is little solace for Mrs. Wright that she was not negligent, either by her actions or by imputation, when the same result is reached by another method.

Rules of law should be consistent and harmonious with each other. Consistency is achieved by our conclusion that Mr. Wright's comparative negligence should not reduce the damages awarded as a result of Mrs. Wright's nursing services because this decision corresponds with the non-imputation of negligence rule. If there were different social policies underlying the non-imputation of negligence rule and the rationale which supposedly justifes reducing all damages by the husband's comparative negligence, then perhaps consistency would not be a proper goal. However, we do not perceive conflicting policies. The non-imputation of negligence rule is a recognition that a woman does not lose her individuality when she marries-she is not deemed negligent just because she is married to a negligent man. And this rule does not undermine the family relationship. Likewise, while our decision is an express recognition that a woman does not sacrifice her individuality by marriage, it will not affect the family relationship.

We turn now to the appellees' argument that Mrs. Wright's services are an element of her husband's consortium. The trial court buttressed its conclusion that Mrs. Wright has no interest apart from her husband by reasoning:

". . . [T]he husband's consortium 'includes the performance by a wife of her household and domestic duties, in the sense of whatever is necessary in such respect according to their station in life, without compensation therefor. * * * It has been said that by entering into the marriage she impliedly agrees to perform such services without compensation. * * *' It is upon the basis of the foregoing principle that courts have generally allowed the parent's action by the father to embrace a recovery for the gratuitous nursing services performed for the injured child by the mother."

319 F.Supp. at 1376, quoting Cox v. Cox, 183 So. 2d 921 (Miss.1966).

A summary of Mrs. Wright's activities in caring for her son will put this argument in its proper perspective. After she awakens Douglas about 6:30 A.M., Mrs. Wright takes him to the bathroom (via wheel chair), places him on the commode, and begins preparing his bath,16 If his bowels do not move,17 Mrs. Wright must remove the feces manually through the rectal opening. When the bath water is ready, Mrs. Wright must place her son in the bath tub. This relatively simple procedure is complicated by the fact that Douglas's bones are brittle and break easily, so Mrs. Wright must make certain that she places him in the water very carefully. She then bathes him and returns him to his bed where she administers the first of two daily massages.18 When Mrs. Wright massages her son, she must pay particular attention to the skin in the paralyzed area, using lotions to keep the skin in good tone. Douglas's skin must be kept clean and dry because moisture will macerate the skin. This is not a simple task because Douglas perspires profusely as a result of his impaired nervous system.

In preparing her son for the day, Mrs. Wright must also provide for the control of his urine. We quote from the district court's opinion:

"An indwelling catheter and bag were first used for control of urine but after resulting complications a series of surgical operations took place over the next several years which ultimately bypassed the bladder and provided for urine discharge through a stoma, an opening made at the navel. This enabled Douglas to wear a special urine collecting device."

319 F.Supp. at 1377.

Mrs. Wright massages the stoma opening daily by putting her finger in the opening to dilate it so that the opening does not become too small to be functional. After this is done, she "cements" the urine bag around the stoma opening. Again, this is not an easy procedure; the cement does not readily adhere to the scar tissue around the stoma, and the area is difficult to keep dry because of the continual leakage of urine. When the urine bag is in place, Douglas is dressed, put in his wheel chair, taken to the car, lifted from his wheel chair into the car, and driven two blocks to school. The time is about 8:20 A.M.

Mrs. Wright picks Douglas up and brings him home for lunch. After school she again picks him up (she testified that she goes to school an average of three times a day), and three times a week she takes Douglas for physical therapy treatments in East Gary, Indiana. After returning home from either school or therapy, Mrs. Wright goes through essentially the same procedures-undressing, bathing, massaging, and taking off and reattaching the urine bag to the stoma-that she goes through in the mornings. It is also necessary for her to administer physical therapy to Douglas's lower extremities; that is, she must put the paralyzed joints through a full range of motion. The record is unclear whether she does this every day, but since Dr. Betts testified that Douglas needs some therapy every day, it appears that she gives her son therapy at least on the days when he does not go to a professional therapist, which would be four times a week. Mrs. Wright's activities do not end when her son goes to bed. The delicate condition of her son's skin makes it necessary for her to turn Douglas to different sleeping positions at two hour intervals throughout the night. She is so accustomed to sleeping in two hour stretches that she no longer needs an alarm to wake up when it is time to change her son's position.

Our summary here is not as detailed as it might have been and does not include all of the things that Mrs. Wright has done over the years. We are aware that as Douglas grows older and more mature Mrs. Wright's duties may decrease somewhat. Nevertheless, the argument that her services belong to her husband falls of its own weight. Even a cursory examination of the services Mrs. Wright renders to her son compels the conclusion that her activities are far beyond those contemplated by the marital relationship. Her activities cannot be characterized as normal household and domestic duties which by entering into the marriage she impliedly agreed to perform without compensation.19 We have no difficulty concluding that they exceed those which the law includes under the consortium label.20

On the basis of the preceding discussion, we hold that Mrs. Wright has a legally protected interest in the value of her nursing services rendered to her son.21 The district court was therefore in error when it reduced the damages attributable to the non-negligent spouse by her husband's comparative negligence.22

We have disposed of Mrs. Wright's claims in a manner consistent with the available Mississippi law and find it unnecessary to squarely face the constitutional issue raised when the district court's holding is compared with Reed v. Reed, 404 U.S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225 (1971). In Reed the Supreme Court unanimously struck down, as violative of the equal protection clause of the fourteenth amendment, an Idaho statute which expressed a mandatory preference for a male over a female administrator without an examination of their individual qualifications. We must admit, however, that our interpretation of Mississippi law and our conclusions regarding the manner in which a Mississippi court would have solved the issues facing us were reached with an awareness that a different interpretation or a different result would raise significant constitutional questions.

As yet, we have not mentioned the $65,344.92 in damages arising from past and future expenses of cure exclusive of the mother's nursing services. The district court reduced these damages by Mr. Wright's comparative negligence. This result also cannot be supported by the obligation to support-sole owner of the cause of action rationale. However, that does not mean that the decision regarding this element of damages is erroneous because it can perhaps be justified on a different basis.

It is clear that a Mississippi woman can enter a contract which does not bind her husband or which binds her separate estate jointly with her husband. See Miss.Code Ann. Sec. 451, 1942; Cooke v. Adams, 183 So. 2d 925 (Miss., 1966); Montgomery Ward & Co. v. Nickens, 203 Miss. 195, 33 So. 2d 815 (1948); Skehan v. Davidson Co., 164 Miss. 518, 145 So. 247 (1933). But our record is not clear whether Mrs. Wright agreed, either expressly or impliedly, to bind her separate estate for the various medical expenses involved here. Also, the record does not disclose whether the creditors who rendered goods or services to Douglas agreed to look solely to Mrs. Wright for payment.23 On this record we are reluctant to decide the treatment of this element of damages since we have taken a completely different approach to the issue than did the trial court. We therefore remand for the district court to hear additional evidence relating to this particular element of damages and intimate no view on how the issue should be resolved.

Appellants contend that the last clear chance doctrine removes from Mr. Wright the burden of his contributory negligence. The Mississippi courts have applied what the Restatement (Second) of Torts refers to as the "conscious last clear chance" rule. Before the doctrine is applicable under this formulation, a defendant must know of the plaintiff's situation and realize the peril involved in it.24 It is not enough that defendant should have realized that plaintiff was in a perilous position. An analysis of Mississippi cases casts no doubt on the continuing validity of this court's statement in Illinois Central R.R. Co. v. Underwood, 235 F.2d 868, 877 (5th Cir., 1956), that: "There must be a 'clear' chance after the peril is actually discovered and actually appreciated" for a defendant, through the exercise of ordinary care, to avoid an accident. See New Orleans & Northeastern R.R. Co. v. Burney, 248 Miss. 290, 159 So. 2d 85, 91 (1963); Mississippi Cent. R. Co. v. Aultman, 173 Miss. 622, 160 So. 737, 740 (1935); Gulf, M. & N. R. Co. v. Arrington, Miss., 107 So. 378 (1926). See also Gulf, Mobile & Ohio R.R. Co. v. Hollingshead, 236 So. 2d 393 (Miss., 1970). In Aultman, for example, the Mississippi Supreme Court approved a last clear chance instruction that the train engineer must have seen, known, and appreciated the peril of the bus in time to have stopped the train before the collision.

We recognize that Fuller v. Illinois Cent. R. Co., 100 Miss. 705, 56 So. 783 (1911), contains language supporting the proposition that last clear chance applies even if defendant did not have actual knowledge of plaintiff's perilous position.25 The dicta from this decision has not been followed in subsequent cases, and we cannot give it a meaning beyond that given by the Mississippi courts. We conclude then that the district court properly refused to apply the last clear chance doctrine to the facts of our case.

Appellants next assert that the trial court erred in finding the father, Albert Wright, contributorily negligent. Gordon v. Lee, 208 Miss. 21, 43 So. 2d 665 (1949) is cited for the following principle:

"[T]hat if a parent leaves a child of tender years unattended temporarily across a highway, even though the parent might know that the child would be likely to undertake to cross the highway in returning home, when the child leaves that place and enters an area of peril, and the child is thereupon injured through the negligence of another person, the parent is not deemed to be contributorily negligent where the accident to 'the child could have been avoided by the defendant through the exercise of reasonable care in keeping a constant lookout for pedestrians who may chance to use the highway."'

This is a quote from appellant's brief and the quote within the quote is from Gordon v. Lee at 668.26 This is a valiant effort to fit the facts of our case within those of Gordon v. Lee, but it is of no avail. In that case the jury found that a mother who thought her child was playing on a courtyard was not negligent in allowing the unattended child to "[climb] over [a] seawall and [enter] the highway either by going through a vent ten inches high and forty-eight inches long" or in climbing over a concrete curb. The defendant in Gordon v. Lee was evidently arguing that the mother was contributorily negligent as a matter of law when she allowed her child to go to the beach unattended, knowing that the child might cross the highway in returning home. All the Mississippi Supreme Court said in that case was that the jury was warranted in finding that the mother was not negligent. The court did not hold that a parent could never be negligent in allowing a small child to cross a highway alone. Appellants would have us adopt a rule that a parent who knows that his child is likely to cross a busy highway may abandon his child, go about his business, and rely, both for the safety of his child and for his own safety under the law, on those using the highways to exercise care to avoid running over the child. This absurd result cannot be ascribed to the courts of Mississippi under Gordon v. Lee nor to us under Erie Railroad Co. v. Tompkins. We hold that the district court, as the fact-finder in our case, was justified in finding Albert Wright contributorily negligent.27 Mr. Wright knew the highway was a busy one, that Douglas should not cross it alone, and yet he failed to exercise that degree of care necessary to protect his young son. We realize that even the most careful parent cannot keep an ever-present eye on his child, and our holding does not require this of a parent.28 A parent is, however, required to exercise reasonable care to protect a child from harm, and under our facts, Mr. Wright did not meet this standard.29

Appellants' final contentions are that the district court erred in finding that Mr. Wright's negligence contributed two-thirds to the cause of the accident and in finding that the value of Mrs. Wright's nursing services was $115,760 rather than $376,911 as claimed by Mrs. Wright. We hold that the court, as the fact-finder in this case, did not err in either instance.

We conclude that the district court's decision must be reversed in part for the entry of judgment consistent with this opinion and remanded for proceedings consistent herewith.