
    Drown v. The Northern Ohio Traction Company.
    
      Negligence of both plaintiff and defendant — Plaintiff cannot recover, when — Doctrine of “last chance” applies, when — Plaintiff can recover only upon allegations of his petition — Instructions to fury.
    
    1. Where both the plaintiff and the defendant were negligent, and the negligence of both directly contributed to produce the injury, the plaintiff has no right to recover; and in such case, . when the defendant asks the court to so instruct the jury, in unambiguous terms, a refusal to so instruct is error. Pittsburg, Ft. W. & C. Ry. Co. v. Krichbaum’s Admr., 24 Ohio St., 119, and Timmons v. Central Ohio Railroad Co., 6 Ohio St., 103, approved and followed.
    2. 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.
    3. Since the plaintiff car recover only upon the allegations of his petition, he cannot recover upon negligence which warrants the application of the rule of “last chance” without alleging it in his petition.
    (No. 9897
    Decided May 7, 1907.)
    Error to the Circuit Court of Summit County.
    This case came into the .court of common pleas of Summit county by appeal from a justice of the peace. It was an action to recover damages for an injury, by an electric car belonging to the defendant, to a buggy and a- pair of horses hitched thereto. The petition alleged no other specific act of negligence by the defendant than that the car of the defendant was running at a high and dangerous rate of speed without sounding a signal and without warning of any kind, in violation of an ordinance of the city of Akron, and without keeping any lookout for persons driving on the street. The defendant denied all the allegations of negligence, and further answering, alleged that if the property of plaintiff .was injured or damaged in any way it was the direct result of the carelessness and negligence of the plaintiff and of the person driving the team of horses owned by the plaintiff; that the person driving said team .carelessly and negligently drove upon the track of the defendant in front of an approaching car, without looking for an approaching car or taking any precaution for his safety or the safety of the team; that the approach of the car could have been seen and heard by the person driving the team, had he used ordinary care or looked for an approaching car; that the person driving the team drove upon the tracks of the defendant in front of an approaching car,7 which was so close to the team at the time it was driven upon said track that it was impossible to stop the car; and the defendant also further avers that any injury or damages sustained by the plaintiff were the result of the negligence of the plaintiff and the person driving the team directly contributing thereto. The reply denied each and every allegation contained in the answer, except so far as they are admissions of the plaintiff’s petition. The circumstances of the case, as developed in the evidence, are as follows: A span of horses, harnessed to a top-buggy belonging to the plaintiff in error and driven by one Hardy, was going south on Main street, in the city of Akron, having come on to Main street from Coburn street. There was a loaded wagon standing on the west side of Main street, with a span of horses attached to it, hitched to a post. The point at which the plaintiff in error’s team came upon Main street was about two hundred or two hundred and fifty feet north from the point where the accident occurred. When the driver reached Main street, he looked to the north for an approaching car, but saw none. He did not look back of him after he started southward upon Main street. There was a double track on Main street. The team was driven at the rate of seven or eight miles an hour south upon the street, and seeing a wagon extending to within a few feet of the street car track on the west side of the street, Hardy drove astride of the west rail of the west track, in order to avoid it. A short distance beyond the wagon, which was hitched in the street, the buggy and horses were struck by the car. The driver, Hardy, testifies that the accident occurred as he was leaving the track upon which he had driven to go around the wagon. The motorman and one other witness called by the plaintiff testify that the accident occurred as the Team was driven upon the west track. The motorman and two other employes of the defendant company testify that on the trial before the justice of the peace Hardy testified that the accident occurred as he drove upon the track to pass around the team which was hitched in the street. Hardy denies this. The court was asked to instruct the jury in several propositions, only two of which it is necessary to quote. They are as follows: “3. If the jury find from the evidence that the plaintiff through his agent Hardy and the defendant were both negligent and that the negligence of both directly contributed to cause the injury complained of in plaintiff’s petition, then your verdict should be for the defendant.” “4. If the jury find that the negligence of both plaintiff’s agent and the defendant combined so as to directly cause the injury complained of by plaintiff, then yotir verdict should be for the defendant.” These requests to charge were refused by the court, but the court did charge the jury as follows: “I say to you, gentlemen of the jury, that if you find from all the evidence that the motorman, who had charge of the car which struck Hardy’s team, could by the exercise of ordinary care have seen the plaintiff and stopped the car, and that by reason of the failure to stop the car Hardy’s team was knocked down and injured, it would be such negligence on the part of the defendant as would enable the plaintiff to recover, provided Hardy was free from contributory negligence on his part; or if the motorman saw Hardy’s team on the track, or by the exercise of ordinary care could have seen it in time to stop the car, but did not, and purposely, willfully and wantonly ran into it, then defendant would be guilty of negligence, and the plaintiff would be entitled to recover under such circumstances, even if plaintiff’s agent was guilty of contributory negligence in.being on the track in front of the car at the time of the injury. * * * The court instructs the jury that one who is injured by the mere negligence of another cannot recover any compensation for his injury if, by his own negligence, he contributed to produce the injury of which he complains, so that but for his, or his agent’s concurring or co-operating fault, the injury would not have happened to him, except when the direct cause of the injury is the omission of the other party after becoming aware of the injured party’s, or his agent’s, negligence, or by the exercise of ordinary care could have become aware of such negligence, failed to use a proper degree of care to avoid the consequences of such negligence. The court instructs the jury that notwithstanding the jury may find that the plaintiff or his agent was guilty of negligence, and that such negligence contributed to the injury of which he complains; yet still if the agents of the' defendant were aware of such negligence in time, by the use of ordinary care and prudence, to have avoided the effect of such negligence on Hardy’s part, but did not do so, then such negligence on his part is not such contributory negligence as to "constitute a defense to this action. What I mean by that, gentlemen, so as to make no mistake, is, that if Hardy was on this track driving south, and you find that he was negligent in being on it as he was, his failure to look, or failure to watch, to avoid injury, if he was negligent, that that would not prevent him from recovering in this suit, if the motorman of the car, after discovering him in that position, could have, by the use of reasonable and ordinary- care on. his part, avoided the injury by stopping the car. Now, gentlemen, that is a question of fact for you to-determine from all the facts and circumstances in the case, and I leave that question wholly for you to determine impartially and justly, according to the testimony.” The defendant excepted to the charge generally, and to each and every part thereof, and to the refusal to charge as requested. The jury returned a verdict in favor of the plaintiff, motion for new trial was overruled, and judgment rendered upon the verdict. On petition in error, the circuit court reversed the judgment of the court of common pleas and remanded the cause to the said court to be proceeded in according to law and the rights of the parties. The plaintiff in error seeks to have the judgment of 'the circuit court reversed and the judgment of the court of common pleas affirmed.
    
      Mr. G. M. Anderson and Mr. A. J. Wilhelm, for plaintiff in error,
    cited and commented upon the following .authorities:
    
      Railway Co. v. Schade, Admr., 15 C. C., 424; 57 Ohio St., 650; Railway Co. v. Ehlert, Admr., 19 C. C., 177; 63 Ohio St., 320; Railroad Co. et al 
      v. McCormick, Admx., 69 Ohio St., 45; Elliott on Roads and Streets, 2d Ed., Secs. 765 and 767; Wilkins v. Railway & Bridge Co., 96 Ia., 668; Booth on Street Railways, Sec. 316; Hull v. Railway Co., 13 Utah, 243; Mahoney v. Railway Co., 110 Cal., 471; Railway Co. v. Albright, 14 Ind. App., 433.
    
      Messrs. Rogers, Rowley & Rockwell; for defendant in error.
    Where the testimony of the plaintiff raises a .clear presumption of negligence on his part, which directly contributed to the injuries complained of, and no testimony is offered by him tending to rebut that presumption, the duty of trial court is to direct a verdict for defendant.
    In the case at bar, adopting the theory of plaintiff in error, the testimony of. Hardy, the driver of the vehicle, at the time of the accident, clearly showed him to be guilty of negligence, which was concurrent and contemporaneous with the alleged negligence of the defendant, and which was wholly unrebutted, and it was the duty of the court under the circumstances to have directed a verdict for the defendant as requested by the defendant at the conclusion of plaintiffs testimony.
    That plaintiff was guilty of such contributory negligence as to defeat a recovery either upon his claim that he drove upon the track for a distance of two hundred and fifty or three hundred feet with his back toward an approaching car without looking, or upon the theory of the defendant that he suddenly drove upon the track directly in front of an approaching car is sustained by a uniform line of authorities.
    
      a. Under plaintiff’s testimony.
    It is the duty of a driver of a vehicle when driving upon a street car track to look behind for cars approaching from the rear, and to drive for a distance of two hundred and fifty to three hundred feet without doing so is negligence. Booth on Street Railways, Sec. 316; McGauley v. Transit Co., 79 S. W. Rep., 461; Belford v. Railroad Co., 83 N. Y. Supp., 836; Baking Co. v. Railway Co., 94 N. W. Rep., 533; Clark on Accident Law, See. 106.
    b. Under defendant’s testimony.
    For the driver of a vehicle to suddenly turn upon a street car track directly in front of an approaching car is negligence, and such negligence as would bar a recovery. Harpham v. Traction Co., 4 C. C., N. S., 257; Railway Co. v. Wadsworth, 1 C. C., N. S., 483; 70 Ohio St., 432; Sullivan v. Railway Co., 71 N. E. Rep., 90; Railway Co. v. Marschke, 70 N. E. Rep., 494; Traction Co. v. Browdie, 2d St. Ry. Rep., 138; Railway Co. v. Jenkins, 11 Cir. Dec., 130; Rider, Admx., v. Rapid Transit Co., 171 N. Y., 139; Williams v. Railway Co., 97 N. Y. Supp., 393; Walsh v. Railroad Co., 99 N. Y. Supp., 773.
    c. Upon the proposition of its being the duty of the court to direct a verdict we cite the following authorities: Railroad Co. v. McClellan, 69 Ohio St., 142; McCarty v. Railroad Co., 20 C. C., 536; Stafford v. Railway Co., 85 N. W. Rep., 1036; Mathes v. Railway Co., 59 N. E. Rep., 77; Russell v. Railway Co., 86 N. W. Rep., 346; Creamer v. Railway Co., 156 Mass., 320; Benjamin v. Railway Co., 160 Mass., 3; Robbins v. Railway Co., 
      165 Mass., 30; Kelly v. Railway Co., 175 Mass., 333.
    The trial court in its charge instructed the jury that the defendant was liable for the omission of duty not only after becoming aware of plaintiff’s negligence but for a failure to use a proper degree of care after it could by the exercise of ordinary care have seen plaintiff in time to avoid the injury.
    This we take it is not the law in Ohio. The circuit court in passing- upon the case at bar, reviewed the cases of Railway Co. v. Shade, Admr., 37 Ohio St., 650; Railway Co. v. Ehlert, Admr., 63 Ohio St., 320; Railroad Co. v. McCormick, Admx., 69 Ohio St., 45, and upon the authority of the two later cases held the rule of law as charged by the trial court to be erroneous.
    In the case of Railroad Co. v. Kassen, 49 Ohio St., 230, the railroad company were held liable, when the railroad company, after it became'aware or ought to have become aware of the plaintiff’s danger, failed to use ordinary care to avoid injuring him.
    In the McCormick case, 69 Ohio St., 45, however, the engineer had no, knowledge of McCormick’s presence upon the bridge until too late to take any steps to save him, and it will be borne in mind that McCormick was neither a licensee nor a trespasser. This (supreme) court in passing upon the McCormick case referred to the Kassen case and differentiated between them. Siek v. Railway Co., 16 C. C., 393; Traction Co. v. Simon, Admr., 8 C. C., N. S., 515.
    The rule in, Ohio therefore seems to be well settled that mere negligence in not discovering a person in peril not amounting to a willful or reckless disregard of the rights of others will not give a party guilty of contributory negligence proximately causing his injury a right to recover. The plaintiff in this case, however, seeks to have a different principle applied to this defendant. The most that can be claimed for the' rights of both plaintiff and defendant in the streets is that they are equal and their duties and obligations are mutual.
    In an action for injuries from being struck by a street car, it was error to authorize a recovery by the plaintiff, notwithstanding contributory negligence, where the evidence showed conclusively that the motorman did not see the person injured until after the accident. Bennichsen v. Railway Co., 84 Pac. Rep., 420; Beaty v. Railway Co., 91 S. W. Rep., 365.
    Instructions to the jury should be limited to the facts of the case on trial, and to the rules of law which apply to those facts, and govern the actual issues which they present. Frizzell v. Railway Co., 124 Fed. Rep., 176.
    The proposition of law that “If the defendant by the exercise of reasonable care could have avoided the injury after he saw or might have seen by the exerpise of due care plaintiff in his position of peril” involves the question of remote and not proximate contributory negligence.
    It is urged by plaintiff in error that the rule exempting the defendant from liability in .the event of the concurrent proximate contributory negligence of the plaintiff only applies to trespassers or mere licensees. This is not the law. Contributory negligence is not the ground upon which trespassers are denied the right to recover. They are denied this right upon the ground that the defendant owes no duty to avoid injuring them until after actually discovering their peril without regard to the question as to whether or not they were guilty of contributory negligence. We maintain that the rule is no different where the negligence of both parties is concurrent and contemporaneous, whether the party be a trespasser, licensee or a party lawfully using the street.
    The principle that where both parties are in fault and the fault or negligence of each contributes directly to the injury received, neither party can be made to respond to the other, is so well established as to require no elucidation to the court, and we shall simply cite a few of the numerous authorities: 1 Thompson on Negligence, Sec. 237; O’Brien v. McClinchy, 68 Me., 552; Holmes v. Railroad Co., 31 Pac. Rep., 834; Beach on Contributory. Negligence, 3d Ed., 32, note 44; Railroad Co. v. Transportation Co., 32 Ohio St., 116; Railway Co. v. Elliott, 28 Ohio St., 340; Timmons v. Railway Co., 6 Ohio St., 105; Kerwhacker v. Railway Co., 3 Ohio St., 172; Coal Co. v. Estievenard, 33 Ohio St., 43; Railway Co. v. Callahan, 2 C. C., N. S., 326; Railway Co. v. Gahan, 1 C. C., N. S., 205; Murphy v. City of Dayton, 7 N. P., 227; Lucas, Admr., v. Railroad Co., 72 Mass., 64; Murphy et al. v. Dean et al., 101 Mass., 466; Robinson v. Cone, 22 Vt., 213; Trow v. Railroad Co., 24 Vt., 487; Birge v. Gardiner, 19 Conn., 507; Adams v. Ferry Co., 72 Am. Dec., 247; Jerolman v. Railway Co., 108 Ia., 177; Railway Co. v. State, ex rel., 29 Md., 420; Gilbert v. Railway Co., 13 O. F. D., 475.
    
      Under the facts as the defendant claimed them, it was clearly the duty of the court to submit the requests in question. The court had no right to invade the province of the jury and find that the evidence did not sustain defendant’s contention, and it had no right to only submit to the jury the phase of the case contended for by plaintiff. Railway Co. v. Krichbaum’s Admr., 24 Ohio St., 121; Railway Co. v. Wynant, 17 N. E. Rep., 118; 5 Am. St. Rep., 644.
   Davis, J.

Under the issues in this case, evidence was introduced tending to prove that the plaintiff’s agent was guilty of negligence directly contributing to the injury to plaintiff’s property. If the driver of the plaintiff’s team, immediately upon entering Main street, and without afterwards looking to the north as he admits, drove southward upon the track until the car coming from the north overtook and collided with the buggy, he was negligent; because the street was open and unobstructed for from two hundred to two hundred and fifty feet from the point at which he entered upon it, and it was not necessary for him to go upon the street railway track, and because, the night being dark he unnecessarily put himself in a place of obvious danger and continued therein until the moment of the accident, without looking out for an approaching car or doing anything whatever to avoid injury, apparently risking his life and the property of his principal upon the presumption that the defendant’s employes would make no mistakes nor be guilty of any negligence. If, on the other hand, he drove along the street until he came to the obstruction and then turned out upon the track to go around it without again looking, as his own testimony shows that he did not, and was then almost in the same instant struck by the car, he was negligent. Upon either hypothesis, assuming that the defendant was negligent in not keeping a proper lookout, or was otherwise not exercising ordinary care to prevent collision with persons lawfully on its. track, the plaintiff could not recover, if it should appear in the case that the negligence of both is contemporaneous and continuing until after the moment of the accident, because, in such case the negligence of each is a direct cause of the injury without which it would not have occurred, rendering it impracticable in all such instances, if not impossible, to apportion the responsibility and the damages. Suppose, for example, that not only the buggy and horses had been injured,, but the defendant’s car also, by what standard could the extent of liability of either party be determined? Timmons v. The Central Ohio Railroad Co., 6 Ohio St., 105; Village of Conneaut v. Naef, 54 Ohio St., 529, 531. In short, there can be no recovery in such a case unless the whole doctrine of contributory negligence, a doctrine founded in reason and justice, should be abolished:

Under these circumstances, therefore, it was not sufficient to say to the jury that if they should find. that the motorman who had charge of the car which struck the team, could by the exercise of ordinary care have seen the team and could have stopped the car and that by reason of the failure to do so the team was injured, it would be such negligence by the defendant as would entitle the plaintiff to recover, provided that the plaintiff’s-driver was “free from contributory negligence.” The defendant had the right to have the jury specifically instructed, as it requested, that if the jury should find from the evidence that both’ the plaintiff and the defendant, through their agents, were negligent, and that the negligence of both combined so as to directly cause the injury complained of, then the verdict should be for the defendant. The court refused to so instruct the jury, and the circuit court correctly held that the refusal to so charge was erroneous.

The error' in refusing the defendant’s request to charge, was extended and made much more prejudicial when the court, after, giving instructions as to contributory negligence by the plaintiff in very general terms, proceeded to impress upon the jury, by repetition and with some emphasis, the doctrine known.as “the last chance.” This doctrine is logically irreconcilable with the doctrine of contributory negligence, and accordingly it has been vigorously criticised and warmly defended. Probably, as in many * such controversies, the truth lies in middle ground; but it is certain that the rule is applicable only in exceptional cases, and the prevalent habit of incorporating it in almost every charge to the jury in negligence cases, in connection with, and often as a part of, instructions, upon the subject of contributor)'- negligence, is misleading and dangerous.

This confusion seems to arise either from misapprehension of the law or a want of definite thinking. The doctrine of the “last chance” has been clearly defined by a well-known text-writer 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 better 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.” 2 Thompson,. Negligence, Sec. 1629. The italics are the author’s. Now, it must be apparent upon even a slight analysis of this rule that it can be applied only in cases where the negligence of the defendant is proximate and that of the plaintiff remote; for if the plaintiff and the defendant both be negligent and the negligence of both be concurrent and directly contributing to produce the accident, then the case is one of contributory negligence pure and simple. But if the plaintiff’s negligence merely put him in the place of danger and stopped there, not actively continuing until the moment of the accident, and the defendant either knew of his danger, or by' the exercise of sxich diligence as the law imposes on him would have known it, then, if the plaintiff’s negligence did not concurrently combine with defendant’s negligence to produce the injury, the defendant’s negligence is the proximate cause of the injury and that of the plaintiff is a remote cause. This is all there is of the so-called doctrine of “the last clear chance.” A good illustration is found in the case of Railroad Co. v. Kassen, 49 Ohio St., 230. Kassen walked through the rear car of the train on which he was a passenger to the rear platform from which he either stepped off or fell off upon the track, where he lay for about two hours when he was run over by another train. It was held that, although Kassen may have been negligent in going upon the rear platform and stepping or falling off, yet since the railroad company knew of his peril and had ample time to remove him or to notify the trainmen on the later train, its negligence in not doing so was the proximate cause of Kassen’s death and the negligence of Kassen was remote. In that case the proximate cause and the remote cause were so clearly distinguishable; and it is so very evident from the opinion and the syllabus that this distinction was the real ground of the judgment of the court, that it is somewhat surprising that the doctrine of last chance as stated in that case should have been so often misinterpreted as' a qualification of the doctrine of contributory negligence.

It is clear, then, that' the last chance rule should not be given as a hit or miss rule in every case involving negligence. It should be given with discrimination. Since the plaintiff can recover only upon the allegations of his petition, if there is no charge in the petition that the defendant after having notice of the plaintiff’s peril could have avoided'the injury to plaintiff and there is no testimony to support such charge, the giving of such a charge would be erroneous. There is no such allegation in the petition in this case. But further, there is testimony tending to prove that the plaintiff’s team was driven upon the street railway track in the night time, ahead of the car, and that it continued on the track for a distance of two hundred and fifty feet until struck by the car, without taking any precaution to avoid accident. Assuming that the defendant was negligent in not seeing the buggy on the track and in not avoiding the accident, yet the plaintiff’s negligence was continuous and was concurrent at the very moment of the collision. It proximately contributed to the’ collision, for without it the collision would not have occurred. There was no new act of negligence by the defendant, which was independent of the concurrent negligence and which made the latter remote. Therefore there was no place in the case for the doctrine of “the last clear chance.”

There is a case, which was decided in the sixth circuit, which will illustrate our views, and a reference to it may save some further discussion. It is the. case of The Lake Shore & Michigan Southern Railway Co. v. Callahan, 2 O. C. C., N. S., 326; s. c. 15 O. C. D., 115. A railroad section man, in obedience to an order by his foreman, started to walk along the track with his back to a locomotive two or three hundred feet away, but without observing whether the engine was standing still or running backward, and he walked along the track for seventy-five feet without paying any further attention to the engine, which was in fact backing toward him, and was struck by it and injured. The court held that it was. a case of concurrent negligence, continuing to the moment of the injury, that the doctrine of “the last chance” did not apply, and that plaintiff was guilty of contributory negligence.

Similar views were expressed by the New York court of appeals in Rider v. Syracuse R. T. Co., 171 N. Y., 139, 148, per O’Brien, J., as follows: “The contributory negligence of the injured party can not be taken from the jury except in cases where it is clear that there was some new act of negligence on the part of a defendant that was the proximate cause of the injury. The negligence of the deceased, if any, was substantially concurrent with that of the defendant, if any. It is -im-< possible to separate that part of the transaction which took place after the first contact of the car with the vehicle from what took place before. It was all one transaction, and to attempt to divide it into fragments and impute one part of it to the negligence of both parties and another part to the defendant’s negligence alone would, as it seems to us, entirely subvert the law of contributory negligence as applied to accidents of this character. If the theory upon which this case was tried and submitted is-to.be sanctioned, it must, we think, follow that in every case based upon such an accident, the result must turn' not upon the general rule as stated, but upon the exception; or, in other words, the inquiry must be not whether the injured party’ was negligent, but whether. it was reasonably possible for the defendant to have avoided the accident.”-

We do not feel willing to close this opinion without reference to P. Ft. W. & C. Ry. Co. v. Krichbaum’s Admr., 24 Ohio St., 121. While the whole of the court’s opinion, .delivered bv Mcllvaine, J., is pertinent, we quote only the following: “Neither of these instructions, however, indicated the rule by which the jury should be governed, in case they found the injury to have resulted from combined causes, to-wit, the co-operation of negligent conduct on the part of both the defendant and the deceased. With regard to the rule in such case, the court gave to the jury two propositions, as follows: Tt matters not how careless the servants of the defendant may have been, the plaintiff ought not to recover, if the deceased or his father could have avoided •the collision by the exercise of care, diligence, and prudence. On the other hand, it matters not how careless the deceased and his father may have been, if the persons running the train could, by the exercise of ordinary care, -prudence, and diligence, have avoided the collision, and did not, then the plaintiff ought to recover.’ The first proposition was quite as favorable to the defendant as it should have been, but the latter was to its prejudice and is wholly indefensible.”

The judgment of the circuit court is

Affirmed.

Si-iauck, C. J., Price, Crew and Summers, JJ., concur.  