
    West, Receiver, v. Gillette, Admr.
    
      Negligence — Motorman of street car — Vigilance required at street crossing — To avoid collision with vehicle — Injury to vehicle driver — Jury to determine extent of vigilance — Negligence of vehicle driver — Will not defeat recovery, zvhen — Doctrine of last chance.
    
    1. Where the motorman of a street car, in the performance of his duty to keep watch to learn .of danger to persons who may be crossing the track on a public street crossing, discovers that the driver of a smaller vehicle is about to cross the track in front of his car, it is his duty to use ordinary vigilance and care to stop or check the car in order to avoid a collision.
    2. Where a collision occurs and such driver is injured and the undisputed evidence shows that the motorman actually saw such vehicle and had it continually, in view for a considerable distance 'from the crossing, it is for the jury to determine whether he exercised such vigilance and care in the circumstances; and the fact that the driver may have been originally negligent in •the manner of going on the crossing will not, as matter of law, defeat his right to recover for the injury, if the motorman has not used such vigilance after discovering him.
    (No. 14998
    Decided February 13, 1917.)
    Error to the Court of Appeals of Delaware county.
    The defendant in error, Walter Gillette, administrator, brought suit in the common pleas court of Delaware county against the plaintiff in error, Eli M. West, receiver of The Columbus, Delaware & Marion Railway Company, to recover damages for the alleged wrongful death of Albert N. Gillette, who was killed on the 11th day of January, 1913, while driving his horse attached to a buggy upon and over the crossing of Olentangy avenue and San-dusky street within the corporate limits of the city of Delaware.
    The petition averred that the interurban railroad line is located on and along Sandusky street, and that Olentangy avenue is a public street which extends westerly to Sandusky street; that the decedent was driving west on Olentangy avenue and approaching Sandusky street; that the railroad is on the east side of Sandusky street, across and past said Olentangy avenue; that about 300 feet north of said Olentangy avenue there is an elevation, from which point south to said Olentangy avenue there is a very steep grade; and that the motorman, or other employe, on one of the electric cars of defendant, upon reaching the elevation north of said Olentangy avenue, has a clear view thereof and there is nothing to prevent him from seeing any person traveling along said Olentangy avenue towards Sandusky street.
    It is averred that there was an ordinance of the city which limited the speed of the car to eight miles an hour, and that the decedent had a right to and did believe that said approaching car, which was at the top of said elevation more than 300 feet away when said decedent started towards said track, was not running at a speed in violation of the ordinance, nor at such a speed that he could not cross in safety.
    It is further averred that the motorman at a speed in violation of the ordinance negligently and wilfully ran against the horse and buggy of the decedent; that when the decedent started across the track the motorman could see him more than 300 feet away.
    It is alleged that the motorman ran the car at a high, reckless and dangerous rate of speed in utter disreg? rd of the rights of decedent, without giving warning by whistle or otherwise, and that in the collision which resulted the decedent received injuries from which he died.
    The answer of the defendant, after admitting the collision and that the decedent died shortly thereafter, denied all the other allegations of the petition.
    It averred that, if upon the trial it should appear that the defendant was guilty of negligence as charged in said petition, the decedent was guilty of negligence directly contributing to his injury and death in that he started to cross the tracks of the defendant at the point of the collision without first exercising care to discover the approach of the car of the defendant.
    The plaintiff in reply denied all the allegations of negligence against the decedent.
    There was a verdict and judgment for the plaintiff in the trial court. This was affirmed by the court of appeals, and this proceeding is brought to reverse that judgment.
    
      Mr. Harry F. West, for plaintiff in error.
    
      Messrs. Marriott, Freshwater & Wickham and Mr. George C. Snyder, for defendant in error.
   Johnson, J.

On trial of the case motions by the defendant, made at the close of the plaintiff’s evidence and at the close of all of the evidence, to instruct the jury to return a verdict in its favor, were overruled by the court, and it is contended that the court erred in these holdings. An instructive analysis of the evidence is presented in the brief of counsel for plaintiff in error, and a vigorous argument is made in support of his position.

The record discloses that there was considerable conflict in the evidence with reference to the controlling facts which were put in issue by the pleadings, viz., the location of the horse and carriage at the time of the injury, the conduct of decedent, the question of his negligence, the rate of speed at which the horse was being driven by him, the manner in which the car of the defendant was being operated, and the rate of speed at which it was going.

There was very substantial evidence in support of the claims of the contending parties as to these matters, and the determination of the issues of fact was entirely for the jury under proper instructions of the court.

The chief reliance of the plaintiff in error is upon the contention that the court erred in its charge to the jury, and that the error was accentuated by the action of the court upon a request made for further, instructions. The record shows that after the jury had retired and had been in deliberation for some three hours, they returned into court and asked for further instructions, and that the court said to them:

“I will read it to you, gentlemen, having it in pencil (form before me, that part of the charge which has been requested by your foreman:

“ Tn other words, gentlemen of the jury, the decedent, Albert N. Gillette, may have been guilty of negligence in driving upon this track as he did, yet such negligence will not defeat the right of the plaintiff to recover, if the motorman saw the danger in which he was placed in time to have avoided colliding with him by the exercise of reasonable care and by the use of all the means at his command, and negligently failed to exercise such reasonable care. That is, if you find that there was negligence upon the part of the railway company, and negligence upon the part of Gillette, in driving upon this track in front of an approaching car, then you will proceed and examine the conduct of the motorman after he had discovered, or, by the exercise of ordinary care, ought to have discovered, the danger in which the said Albert N. Gillette was at the time. As we have said, it was the duty of the motorman to have his car under control; that is, the car must be in the power of the motorman to such an extent as that when he saw this horse and buggy on the track, or when, by ordinary care in his duty of looking for vehicles, he ought to have seen this horse and buggy on the track, he could stop his car within a reasonable time and distance so as to avoid, if possible, the collision.’ ”

The petition contained the following: “That when the said decedent started across the track of the defendant’s railway, the motorman in charge of said car could see the decedent starting across or upon the track with his said horse and buggy more than three hundred feet away, and that said motorman knew that at the speed he was running the car it would strike said horse and buggy before it could cross said track; but the plaintiff avers that the decedent did not know the speed of the car and could not learn its speed from his position, and avers that decedent reached the track when the car was at least three hundred feet away, and had a right to cross said track, and that the agents, servants and employes of the defendant had ample time, after seeing, as they' did, the decedent crossing the track, to check the speed of the car and stop it and thereby have prevented the collision.”

In Railroad Co. v. Kassen, 49 Ohio St., 230, it is held:

“It is a well settled rule of the law of negligence, that the plaintiff may recover, notwithstanding his own negligence exposed him to the risk of the injury of which he complains, if the defendant, after he became aware, or ought to have become aware, of the plaintiff’s danger, failed to use ordinary care to avoid injuring him, and he was thereby injured.
“The rule, that the negligence of the injured party, which proximately contributes to the injury, precludes him from recovering, has no application where the more proximate cause of the injury is the omission of the other party, after becoming aware of the danger to which the former party is exposed, to use a proper degree of care to avoid injuring him.”

The case just referred to was reviewed in Drown v. The Northern Ohio Traction Co., 76 Ohio St., 234. In the second proposition of the syllabus it is held: “The doctrine of ‘last chance,’ as formulated in Railroad Co. v. Kassen, 49 Ohio St., 230, paragraph one of syllabus, does not apply where the plaintiff has been negligent, and his negligence continues, and, concurrently with the negligence of defendant, directly contributes to produce the injury; it applies only where there is negligence of the defendant subsequent to, and not contemporaneous with, negligence by the plaintiff so that the negligence of defendant is clearly the proximate cause of the injury and that of the plaintiff the remote cause.”

It seems to be now generally agreed that this doctrine of “last chance” is a humane modification of the strict and rigid rule which denies to a plaintiff under all circumstances any recovery for the negligence of a defendant, where the plaintiff has himself contributed to the injury by his own negligence. The application of this rigid rule was in many cases found to work injustice, for it would surely be unjust to hold that one should be denied the protection of the law because of acts of carelessness on his part, which were followed by subsequent acts of negligence on the part of another, which latter acts were the proximate cause of injury. It would, in effect, be holding that where, for example, one goes upon a railway track without exercising proper precautions as to danger, the railway company would be relieved, thereafter, of the duty to exercise ordinary care for his safety. Where one knows of another’s negligence and the circumstances are such that the former has control of the situation, this knowledge and control impose on him as to his subsequent acts an affirmative duty to use ordinary care to avoid injury.

In The Steubenville & Wheeling Traction Co. v. Brandon, Admr., 87 Ohio St., 187, it is held that “where the motorman of a street car being operated on a public street in a much frequented part of a city, discovers, or by the exercise of ordinary care and watchfulness should discover, that the driver of a smaller vehicle is about to cross the track at a street crossing, in 'front of such car, it is the motorman’s duty to use ordinary vigilance to stop or check the car in order to avoid a collision; and the fact that such driver máy have omitted to look for the approach of the car will not, as matter of law, defeat his right to recover for injury from a collision with such car if the motorman has not used such vigilance.”

The court, in the opinion, at page 196, say: “But, assuming that Brandon was guilty of some riegligence in driving on the track, yet if the motorman, in the exercise of even ordinary care, after he saw thé horse and appreciated Brandon’s peril, had time and opportunity to avoid the possible consequences by checking the car, and neglected to so exercise such care, such neglect would be negligence and might properly be regarded as the proximate cause of the injury.”

However, in view of the situation disclosed by the undisputed facts in this case, the objection made to the charge is wholly immaterial.

It is shown by the motorman’s own testimony that he saw the horse and buggy, and actually had it in constant view from the time his car reached the top of a hill, several hundred feet away from where the buggy was, until he struck it. There is a dispute between the witnesses as to the speed of the car and as to whether it was slackened as it ran on toward the crossing where the decedent was. That the motorman fully appreciated the danger of Gillette is shown by his own testimony and that of other witnesses. He says that as he started over the hill he noticed this buggy and started blowing the whistle. Other witnesses testify to the fact that there were a number of sharp, shrill whistles blown as the car proceeded towards where Gillette was. There was no occasion for the court to use the language complained of, “or when, by ordinary care in his duty of looking for vehicles, he ought to have seen this horse and buggy on the track.” But the use of this language could not have confused or misled the jury, because it must have found that the motorman actually saw the horse and buggy in ample time to have stopped his car. It is not conceivable that the verdict of the jury could have been influenced in any degree by the inapt use of the words quoted. Even if it be conceded that the words were erroneously used, no prejudice could have resulted to the defendant.

In 2 Thompson on Negligence (2 ed.), Section 1629, the rule is stated as follows: “Although a person comes upon the track negligently, yet if the servants of the railway company, after they see his danger, can avoid injuring him, they are bound to do so. And, according to the bettér view with reference to injuries to travelers at highway crossings, — as distinguished from injuries to trespassers and bare licensees upon railway tracks at places where they have no legal right to be, — the servants of the railway company are bound to keep a vigilant lookout in front of advancing engines or trains, to the end of discovering persons exposed to danger on highway crossings; and the railway company will be liable for running over them if, by maintaining such a lookout and by using reasonable care and exertion to check or stop its train, it could avoid injury to them.”

In Railroad Co. v. Kassen, supra, the material facts were: The company was running two trains in the same direction about two hours apart. Kassen fell from the rear platform of the forward train to the track, sustaining injuries which disabled him from leaving his position of danger on the track; and while in that condition he was killed by the following train. The employes of the company operating the forward train knew that he had fallen and was in a place of danger. Judgment against the company was affirmed in that case, and in the syllabus the rule of law is stated, viz.: “It is a well settled rule of the law of negligence, that the plaintiff may recover, notwithstanding his own negligence exposed him to the risk of the injury of which he complains, if the defendant, after he became aware, or ought to have become aware, of the plaintiff’s danger, failed to use ordinary care to avoid injuring him, and he was thereby injured.”

That case is distinguished from The Erie Rd. Co. et al. v. McCormick, Admx., 69 Ohio St., 45. McCormick had, for a number of years, been a trackwalker on a portion of the road of the defendant company, which included a bridge. He was struck by one of the company’s trains while on the bridge, receiving injuries from which he died. It was shown that he crossed the bridge at least twice daily and had full knowledge of the whole situation. The court say, at page 51: “There is no statute requiring the construction of a railroad bridge in any other manner than that in which this bridge was. constructed; certainly there is no common knowledge that different methods of construction prevail, nor was there any evidence to that effect. There was, therefore, shown no duty whatever resting upon the company to construct its bridge otherwise; and if there had been such duty it is entirely clear from the plaintiff’s own case that, with full knowledge of the condition acquired through ten years of service, he had acquiesced in that condition, and had thereby waived a right of action in consequence of it.” Concerning the rule in such a case the court say, at page 53: “The concrete rule upon the subject is, that if one is upon the track of a railway company by his own fault and in peril of which he is unconscious, or from which he cannot escape, and these facts and conditions are actually known by the engineer, it is his duty to exercise all reasonable care to avoid the infliction of injury. It does not impose the duty to exercise care to discover that one so upon the track is in a place of danger, but it does impose a duty to be exercised upon actual discovery.”

The facts in that case and the relation of the parties to each other were entirely different from the facts and relation in the case we have here. McCormick was not at a public crossing, or at any other place where the public had a right to be, and the court carefully point out the situation and the circumstances under which McCormick happened to be on the bridge, and say “with full knowledge of the condition acquired through ten years of service, he had acquiesced in that condition, and had thereby waived a right' of action in consequence of it.” . ■

We think the rule stated in Thompson on Negligence, which we have hereinbefore quoted, is well founded in reason and authority, and in view of the undisputed facts shown in this record it is wholly unnecessary to review the large number of cases touching the question. They could be of no assistance for the purposes of this case. Even if it be conceded that the trial court erred in including in its charge the words, “or, by the exercise of ordinary care, ought to have discovered,” as claimed by the plaintiff in error, .the error could not prejudice the defendant’s rights under the circumr stances alluded to.

There was the usual variance in the details given by the different witnesses and there was testimony directly supporting the contentions of each of the parties. But as to the actual view and knowledge of the motorman of the entire situation there is no dispute.- Mr. Stickney, a witness for the plaintiff, testified that he was a passenger on the car at the time; that the car was running about twenty miles an hour, and that there was no change in the speed of the car after it left the top of the hill until it struck the buggy. He testified that when the “sharp, shrill whistle” was sounded he got up and looked out of the car. His mind was evidently-fixed on the transaction.

The testimony of the motorman shows that he had actual view and knowledge of the entire physical situation from the time he started down, the hill referred to; that just as the car started over the hill he noticed the buggy; and that he “started blowing the whistle and applied a little air.” To quote his exact words: “I commenced blowing the whistle again, and it seemed like the horse was going to stop, so I released my air again.” These steps were repeated until the collision.

As above stated, other witnesses testified to other details. It was the function of the jury to determine the ultimate facts from the evidence and to determine whether or not the motorman had, in full view of the entire situation, relied entirely on his whistle; whether or not he had failed to perform his duty to maintain proper control of the car, in. order to be able to stop it if necessary to avoid injury; and whether or not he used ordinary vigilance to stop or check the car under the circumstances shown by the evidence.

With reference to Gillette, it is not shown whether or not he looked from behind the curtain which was on his buggy. As was said in the Brandon case, supra, at page 195: “It is possible he did look and, mistaking the speed of the car, thought he could safely cross, thus attempting to exercise an undoubted right in a public street. If he did it would be a question for the jury whether a man of ordinary prudence, situated as he was then situated, would have done as he did, * * * The driver of such a vehicle is not, in the use of the street, a trespasser, nor a licensee, but one pursuing an undoubted right, and the question always is, did he, in the pursuing of that right, exercise ordinary care ? * * * But, assuming that Brandon was guilty of some negligence in driving on the track, yet if the motorman, in the exercise of even ordinary care, after he saw the horse and appreciated Brandon’s peril, had time and opportunity to avoid the possible consequences by checking the car, and neglected to so exercise such care, such neglect would be negligence and might properly be regarded as the proximate cause of the injury.”

For the reasons given, we think it clear that there is no error shown in this record prejudicial to the defendant in the trial court, and the judgment will be affirmed.

Judgment affirmed.

Wanamaker, Newman and Donahue, JJ., concur.

Jones, J.,

dissenting. The accident occurred in the outskirts of the city of Delaware. The interurban car was proceeding along Sandusky street in a sparsely populated suburb of that city, and the collision of the car with the buggy in which the decedent was driving occurred at the crossing of that street with Olentangy avenue, a thoroughfare approaching Sandusky street at right angles. There is a conflict in the testimony as to whether the motorman sounded his signal, and as to the rate of speed the interurban car was moving at the time of the accident. There is no dispute in the testimony that the decedent was driving on Olentangy avenue towards the crossing in question in an enclosed buggy. Four eyewitnesses testified to the accident, two for the plaintiff and two for the defendant. These witnesses testified that the car and buggy approached the crossing simultaneously. By the exercise of care the motorman and the decedent could have seen each other before the crossing was reached. There is no dispute but that the horse and vehicle “continued” from a distance of from twenty-five to fifty feet from the crossing, as testified to, until the crossing was reached, the only divergence upon that point being whether the horse was walking toward the crossing or jogging along on a trot.

Under this state of facts the court charged the jury: “If .you find, therefore, that there was negligence upon the part of the railroad company, and negligence upon the part of Albert N. Gillette in driving upon this track in front of an approáching car, if he did, then you will proceed and examine the conduct of the motorman, after he had discovered, or, by the exercise of ordinary care, ought to have discovered, the danger in which Albert N. Gillette was at the time. As we have said, it was the duty of the motorman to have his car under control; that is, this car must be in the power of the motorman to such an extent as that when he saw this horse and buggy on the track, or when, by ordinary care in his duty for looking for vehicles, he ought to- have seen this buggy on the track, he could stop his car within reasonable time and distance so as to avoid, if possible, the collision or accident.”

That this portion of the charge was effective in producing the verdict is self-evident. The record discloses that the jury returned for further instructions upon this point, and that the foreman asked the court “to read that part of the charge referring to a similar case where negligence may be found on both sides.” The court thereupon read to the jury the charge quoted, whereupon the foreman answered, “I guess that is sufficient, as far as I am concerned.”

The record therefore discloses, since the verdict of the jury was evidently based upon this particular instruction, that the same, if erroneous, was highly prejudicial. That the charge so given is erroneous, under the facts stated, is evident not only from the decisions of our own court, but from the pronouncement of other jurisdictions which have refused to approve a similar charge under the facts disclosed. Why the triql court gave this instruction in its general charge, and emphasized it by repetition, is beyond comprehension, since it not only failed to follow the express rule of this court upon the subject but refused to submit to the jury special re-' quest No. 8, asked by decedent’s counsel on the trial, which, if justified by the facts offered, would have been less objectionable. That instruction was as follows:

“The court instructs you that even if you' should find that the decedent, Gillette, was guilty of some negligence in driving on the track in front of the approaching car, yet, if the motorman in charge of the car, in the exercise of even ordinary care, after he saw the horse and buggy, and appreciated Gillette’s peril, had time and opportunity to avoid the possible consequences by stopping the car, and neglected to exercise such care, such neglect would be negligence and might properly be regarded as the proximate cause of the injury.

If it be conceded that the petition makes a case of “the last clear chance,” and in our view it does not, the general charge permits recovery by the plaintiff in case the jury found that both the motorman and the decedent were negligent in their manner of approaching the crossing. The italics used in this case are our own, and are used to show wherein the trial court committed error. The legal doctrine of the last clear chance, or “newly discovered peril,” can only be applied to those cases where the facts warrant. It is never applied where the negligence of both defendant and plaintiff is concurrent and so coincident in point of time as to be the proximate cause of the injury.

The principle is a humanitarian one, developed in the evolution of our modern jurisprudence, and in some instances extends to an injured person the right to reparation even though he himself is negligent. But where the negligence of both combine proximately to produce the injury there can be no recovery by either. The development of the principle now favors an injured person, though he has negligently placed himself in a perilous situation, where the defendant has discovered and appreciated that peril and was thereafter bound to use ordinary care to protect him from injury. It is the knowledge of the peril that gives rise to the new and special duty of protecting one who himself , has been negligent. The law, then, says in effect: Though one has been negligent he shall not be penalized if another after notice thereof fails to exercise due diligence towards his protection. In such a case the law regards the prior negligence of the injured person as remote, for the reason that the defendant might later have prevented the injury, and, if defendant does not use such care for the protection of one it knows to be in a perilous situation, that lack of preventive care becomes the proximate cause of the injury. This principle is clearly avowed by this court in The Erie Railroad Co. et al. v. McCormick, Admx., 69 Ohio St., 45. The charge given in the case at bar is in direct' conflict with the law established in the case just cited, and in the later case of Drown v. The Northern Ohio Traction Co., 76 Ohio St., 234.

It is incomprehensible why the syllabus in this case has not attempted to overrule or distinguish these two cases and to clarify the “last chance” rule - for the benefit of the bench and bar of this state. The opinion seems to rely for authority on the cases of Railroad Co. v. Kassen, 49 Ohio St., 230, and The Steubenville & Wheeling Traction Co. v. Brandon, Admr., 87 Ohio St., 187. The Kassen case was distinguished by this court in the case of Erie Railroad Co. v. McCormick, supra, where the court say on page 53: “The concrete rule upon the subject is, that if one is upon the track of a railway company by his own fault and in peril of which he is unconscious, or from which he cannot escape, and these facts and conditions are actually known by the engineer, it is his duty to exercise all reasonable care to avoid the infliction of injury.” That opinion clearly analyzes the former decision and holds that in the Kassen case “the actual knowledge of the employes of the company in charge of the forward train was its [the company’s] actual knowledge,” that the “liability of the company was placed upon the sole ground that after receiving actual notice that Kassen was upon the track and in a position of peril, it failed to use the means at hand to avoid injury to him,” and that “the doctrine, of the case can have no application where neither the company nor its employes operating the train by which the injury is inflicted may be charged with actual knowledge.” The Kassen case was also distinguished in the Drown case, supra. In the case of The Steubenville & Wheeling Traction Co. v. Brandon, Admr., supra, the rule of the last clear chance was not invoked. That case held simply that the failure of the plaintiff to look for the approaching car did not as a matter of law defeat his right of recovery. The' triad court directed a verdict for the defendant upon the theory that plaintiff’s evidence was not sufficient to go to the jury for the reason that it became the absolute duty of the plaintiff, as a matter of law, to look out for the traction car. This court held that the failure to look for the approach of the car before attempting to cross was not, in this state, negligence as a matter of law, but that the circumstances surrounding that case should have been submitted to the jury to determine whether or not such failure was in fact negligence. The question involved in that case was not involved in this, and this court did not undertake to overrule the McCormick case, supra, as appears from the close of the opinion of Judge Spear, as follows: “But, assuming that Brandon was guilty of some negligence in driving on the track, yet if the motorman, in the exercise of even ordinary care, after he saw the horse and appreciated Brandon’s peril,” had failed to exercise ordinary care, in that event that neglect could be regarded as a proximate cause of the injury.

By its instruction in the case at bar the court took upon itself to say to the jury that notwith-' standing the peculiar facts presented, the plaintiff could recover even if his negligence was concurrent and of the same character as that of the defendant. Instructions applied to facts similar to this case and using substantially the same language have generally been held to be erroneous, as will be found in some of the following cases, which discuss at length the principle involved: Thompson v. Los Angeles & S. D. Ry. Co., 165 Cal., 748; Evansville Rys. Co. v. Miller, 111 N. E. Rep., 1031; Himmelwright v. Baker, 82 Kans., 569; Indianapolis Trac. & Term. Co. v. Croly, 54 Ind. App., 566; International & G. N. Ry. Co. v. Ploeger et al., 96 S. W. Rep., 56, and Dyerson v. Union Pac. Rd. Co., 74 Kans., 528. It is true that cases are found that authorize a recovery, where the plaintiff has been negligent, if the defendant ought to have had opportunity for discovering his peril. It is evident that these cases are at variance with the McCormick case. But an examination of the decisions which support this apparent view will disclose that they were generally based upon a state of facts entirely different from the instant case. In such cases recovery is permitted under circumstances where the negligence had ceased or spent its force and therefore became the remote and not the proximate cause of the injury. Being the remote and not the efficient cause of the injury, the defendant, under the doctrine of the last clear chance, has been held liable for the injury, whether it knew of the decedent’s peril or ought to have known of it in the exercise of ordinary care. Where the plaintiff has been negligent, as where he has negligently placed himself in a dangerous position from which he is unable to extricate himself, as where a driver has negligently placed himself in a situation from which he is unable to escape, or where a traction engine has stalled on a railroad crossing some time before the collision, or where a pedestrian has negligently walked along a railway and become helpless or asleep on the track, and in a situation where the employes of the company would have discovered his peril if ordinary care were used, some courts have held under such circumstances that failing to see might be held to be the proximate cause of the injury; but even in these cases recovery is denied' where the negligence of both parties continues and concurs up to the time of injury. In support of this exception to the rule-the textbook cites the jurisdictions of Ohio, North Carolina and Virginia. The Kassen case is cited from Ohio as supporting the text, but that case has been distinguished by a later decision. In North Carolina the exception has been applied where the injured person had been asleep or in a helpless condition, though previously negligent. (Carter v. Southern Ry. Co., 135 N. C., 498, and Swayer v. Roanoke Rd. & L. Co., 145 N. C., 24.) And in Virginia, although the text seemed to have support in the earlier cases, the court, later clarified the question and applied the doctrine to those cases where there was something in the condition or situation of the injured person to ad-monish the defendant that he was not able to protect himself, but held that it had no application where the plaintiff’s negligence continued to the time of the collision. Roanoke Ry. & Elec. Co. v. Carroll, 112 Va., 598, and Southern Ry. Co. v. Bailey, 110 Va., 833.

By the charge in this case, however, the doctrine of contributory negligence, long recognized in this state, has been emasculated, since the charge permits recovery by a negligent person even though that negligence concurred in and was a proximate cause of the injury. It was accordingly at variance with the decision in the case of Drown v. The Northern Ohio Traction Co., supra.

The fallacy in applying the charge to cases of this character is clear. Let it be assumed that two motor vehicles are approaching a crossing over thoroughfares meeting one another at right angles, and that in their approach each driver is negligent in not seeing the other. Would any principle of law uphold the right of either or both of the parties to invoke the rule of the last clear chance ? It is evident that neither could do so because of the culpable negligence of each in such approach. Could it be said that either or both could have a recovery under such a charge as was given to the jury in this case? And though a judgment had been secured by one suing first, upon the theory that the other ought to have observed his approach, would it not follow, under the instruction given, that the other, or second driver, in a later action, could also secure a judgment upon the theory that the first ought to have seen the second vehicle in time to have avoided the accident ? Such is the effect of the instruction given in this case.

The doctrine of the last clear chance is the development of the rule announced in Davies v. Mann, 10 M. & W., 546. In that case the plaintiff had fettered his ass and turned him upon the highway to graze. It appears that there was no plea of imputed negligence; but a careful inspection of. the case fails to reveal but that the defendant may have had actual knowledge of the presence of the ass upon the highway. The court there held that unless it was shown that the donkey’s presence was the immediate cause of the injury plaintiff’s negligence was no defense, and that, if the proximate' cause of the injury was the fault of the defendant’s servant in driving too fast, the mere fact of a prior placing of a fettered ass upon the road would not defeat recovery. It is evident in that case, irre-. spective of the question of the defendant’s actual knowledge, that the decision was based on the fact that the plaintiff’s negligence was not an immediate factor producing the injury but was a remote and not the proximate cause. The active negligence of placing the fettered ass in the highway had ceased an appreciable time before the subsequent act of the defendant, and did not continue and concur with the defendant’s negligence in producing the accident. That the court of exchequer did not intend to overrule the established doctrine that the concurring negligence of both parties would defeat a recovery is evident from their previous decision in the case of Vennall v. Garner, 1 Cr. & M., 21, where at least one member of the court was also a member of the court that later decided the case of Davies v. Mann. In the Vennall case, involving a recovery where two ships came into collision, Sir John Bayley, a baron of the exchequer court, held as follows: “I quite agree, that if the mischief be the result of the combined negligence of the two, they must both remain in statu quo, and neither party can recover against the other.”

This principle found early lodgment in this state in the case of Kerwhaker v. The Cleveland, Columbus & Cincinnati Rd. Co., 3 Ohio St., 173, where it was held that “When the negligence of the defendant on a-suit upon such ground of action, is the proximate cause of the injury, but that of the plaintiff only remote, consisting of some act or omission not occurring at the time of the injury, the action is maintainable.” (Italics ours.)

This rule is recognized in practically every jurisdiction; and the case of Drown v. The Northern Ohio Traction Co., supra, is simply an elaboration of that principle. In the case at bar the motorman might .well have assumed that the traveler approaching the crossing would not attempt to pass in front of the car, but would stop before the point of danger was reached. N. Y., C. & St. L. Rd. Co. v. Kistler, 66 Ohio St., 326; Thompson v. Los Angeles & S. D. Ry. Co., 165 Cal., 748; Roanoke Ry. & Elec. Co. v. Carroll, 112 Va., 598; Ill. Cent. Rd. Co. v. Ackerman, 144 Fed. Rep., 959, and Thompson on Negligence (White’s Supp.), Section 1601, and authorities there cited.

The concrete rule upon the subject is found in 29 Cyc., 530, where it is stated that a person guilty of negligence in exposing himself to danger may still recover, if the defendant, after knowing of such danger, could have avoided the injury by the exercise of ordinary care. But it is stated that “This rule has no application where the negligence of the person injured and of defendant are concurrent, each of which at the very time when the accident occurs contributes to it.” See also 33 Cyc., 854.

The first proposition of the syllabus in the instant case, as an abstract proposition of law, is without criticism, for the element of decedent’s negligence is lacking, and it therefore cannot be applied to the charge in this case where such negligence may be found by the jury. The latter part of the second proposition is not apropos, either to the case made or to the charge given, for two vital reasons. It fails to require the element of appreciation of the decedent’s peril after seeing him “a considerable distance from the crossing.” Furthermore, what is meant by the expression, the decedent may.have been originally negligent? Does it imply a cessation of decedent’s negligence, or that it was so remote as not to constitute a proximate. cause of the accident?. That phase is not charged in the petition, not suggested in the evidence, nor contemplated in the charge under consideration. Unfortunately the charge given assumes a present, concurring negligence. The language used was: “If you find, therefore, that there was negligence upon the part of the railroad company, and negligence upon the part of Albert N. Gillette in driving upon this track in front of an approaching car.” The car and buggy approached the crossing, simultaneously. The verdict is justified in the majority opinion notwithstanding the charge, because the motorman, near the point of collision, did see the decedent. So did the engineer see the deceased in the McCormick case, supra. It is true the court in that case held that no duty rested upon the railway company to construct its bridge otherwise than it did, and that the trackwalker was not among that class of persons to whom was owing the duty requiring the giving of crossing signals. These features of course are not in the present case, and do not affect it, and it is difficult to perceive their relevancy. Upon the main question the cases are not distinguishable. In both cases a duty arose requiring the exercise of ordinary care, but this duty became existent after the discovery and appreciation of the peril. The present case presents a much stronger reason for the application of the principle under discussion than does the McCormick case, for in the latter it' was an issuable fact whether the injured person could have escaped from a situation in which he had theretofore negligently placed himself.

In the present case the motornjan testified he first discovered the horse when it was fifty feet from the track. If the court had confined his charge to the motorman’s duty after he saw the horse and appreciated the decedent’s peril, the charge might have been consistent with the McCormick case, if concurring negligence were absent. But driving along Olentangy avenue as decedent did, the language employed by the court — to the effect that the jury should have examined “the conduct of the motorman after he had discovered, or, by the exercise of ordinary care, ought to have discovered,” the decedent’s danger — could only apply to the motorman’s conduct in not earlier discovering the impending peril at any point along Olentangy avenue, and thus impose the duty of ordinary care upon the motorman in case he should have earlier discovered the decedent’s perilous situation. The charge could have been understood in no other sense. In other words, the same duty of ordinary care that was required after actual discovery was imposed upon the motorman in case he “ought to have discovered” the peril.

It is difficult to see how the trial court could have gone astray in this case, especially in view of the adjudicated cases reported by this court. It may be said that the several circuit courts of this state have not been in doubt as to the proper rule to apply in cases of this character since the decision of The Erie Railroad Co. et al. v. McCormick, Admx., supra, distinguishing the Kassen case. The latter case was decided by this court in 1892, and there might have been some justification for giving such instructions under that decision, before the pronouncement of this court in the case of Erie Railroad Co. v. McCormick, Admx., supra. Since the latter decision the appellate courts of this state generally have found no trouble in applying the proper legal principle to cases of this character. Counsel for the defendant in error, as did the court of appeals, relied upon the old case of The L. S. & M. S. Rd. Co. v. Schade, Admr., 15 C. C., 424, decided by the eighth district in 1895, a case which the old circuit court decided upon the authority of the Kassen case, supra. Hale, J., a member of that court, in his dissenting opinion clearly distinguishes the Kassen case upon a course of judicial reasoning later followed by this court in the case of Erie Railroad Co. v. McCormick, decided October 13, 1903. Since the decision of the latter case, the circuit court of the eighth judicial district, in at least three reported cases has expressly repudiated the doctrine announced by it in the Schade case, one of which is The Northern Ohio Traction Co. v. Drown, 7 C. C., N. S., 549. The circuit court of the first judicial district in Hamilton county denied recovery in The Cincinnati Traction Co. v. Jones, 13 C. C., N. S., 319. The circuit court of the sixth judicial district refused to apply the last chance rule in the case of The L. S. & M. S. Ry. Co. v. Callahan, 2 C. C., N. S., 326. The circuit court of the seventh judicial district refused to follow the Schade case and distinguished the Kassen case in the case of The L. S. & M. S. Ry. Co. v. Harris, Admr., 3 C. C., N. S., 599. And the circuit court of the fourth judicial district has frequently held that the doctrine of the last clear chance cannot apply to a state of facts which permits a plaintiff to recover notwithstanding his own negligence and especially under such a state of facts as is disclosed here. The charge of the trial court was highly prejudicial, and the erroneous charge was effective in producing the verdict, as evidenced by the record.

Matthias, J., concurs in the dissenting opinion.  