
    NEGLIGENCE.
    [Cuyahoga (8th) Circuit Court,
    October 28, 1912.]
    Marvin, Winch and Niman, JJ.
    
      John Bejac v. Cleveland, P. & E. Ry.
    Doctrine of “Last Chance" Does Not Apply When Negligence Is Concurrent.
    The doctrine of last chance has no application in cases where the negligence of both plaintiff and defendant are concurrent and directly contributing to produce the accident, but only in cases where the negligence of the defendant is proximate and that of the plaintiff remote.
    ERROR.
    
      Pattison & Austin, for plaintiff in error.
    
      Kline, Tolies <& Morley, for defendant in error.
    
      
       Affirmed, no op., Bejac v. Cleveland, P. &. E. Ry., 90 O. S. 409.
    
   WINCH, J.

The plaintiff in error was injured while crossing in front of an approaching ear of the defendant company. His case was submitted to a jury, which brought in a verdict for the defendant under a charge which eliminated from the consideration of the jitry any application of the doctrine of last clear chance.

For the purpose of testing the correctness of the judgment on this verdict, it may be conceded that the company was negligent in operating its ear at too great a speed and in not sounding a gong or giving other warning of the approach of the ear, or was otherwise negligent. But the plaintiff Was, negligent, also. He carelessly put himself in a place of danger. If he looked and did not see the approaching car, as he testified, his senses must have been befuddled by the beer he had just drunk. There was an unobstructed view in the direction from which the car was coming, of over 800 feet. It was a clear day about noon. The motorman saw the plaintiff and his companion when they left the saloon and started to cross the street and the tracks, u hen he was about 350 feet away. He had a right to believe that tbe men would look and see tbe car, as be saw them, 'and not step upon tbe track immediately in front of tbe car, as they did.

Plaintiff must bave been within fifteen to fifty feet of tbe car when be stepped upon tbe track. His companion was ahead of bim and barely jumped out of tbe way.

Tbe contributory negligence on tbe part of tbe plaintiff in stepping in front of a rapidly approaching ear, which be should bave seen, bars bis recovery, because bis negligence was contemporaneous with that of tbe motorman, and was a proximate cause of tbe injury.

In the ease of Drown v. Northern Ohio Trac. Co. 76 Ohio St., 234 [81 N. E. 326; 10 L. R. A. (N. S.) 421], Judge Davis, after quoting from Thompson, Negligence to tbe effect that “Although a person comes upon the track negligently, yet if the servants of the railway company, after they see his danger, can avoid injuring bim, they are bound to do so,” goes on to say, on page 248 of tbe opinion:

“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, why then the case is one of contributory negligence pure and simple. But if tbe plaintiff’s negligence merely put bim in a place of danger and stopped there, not actively continuing until the moment of the accident, and the defendant either knew of bisi danger, or by the exercise of such diligence as tbe law imposes on him would bave 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 tbe proximate cause of tbe 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.”

On authority of the Drown ease, it would have been proper if the trial judge had directed a verdict for the defendant.

There is no error in the record prejudicial to plaintiff in error, and the judgment is affirmed.

Marvin and Niman, JJ7, concur.  