183 N.E. 873 | Ohio | 1932
Lead Opinion
Since the decision by this court of West, Recr., v. Gillette,Admr.,
The "last clear chance" doctrine was thoroughly discussed by the author of this opinion in the Gillette case, supra. In his opinion he stated that there were cases in other jurisdictions at variance with the Ohio decisions upon this subject; but that Ohio had been definitely placed in the category of those jurisdictions requiring actual knowledge and appreciation of the plaintiff's peril, where the plaintiff himself negligently caused his perilous situation. The cases upon this subject may be found in the notes attached to the various text-books upon the subject, viz., 45 Corpus Juris, 990; 20 Ruling Case Law, 142; 7 Supp. Ruling Case Law, 4845.
The McCormick case, supra, has never been overruled; *48
for twenty-nine years it has been the law of this state. The third proposition of the syllabus in that case reads: "In an action against a railroad company by one who, by his own fault is upon its track and in a place of danger, to recover for a personal injury caused by the failure of its employes operating one of its trains to exercise due care after knowledge of his peril, it is necessary to show actual knowledge imputable to the company. Railroad Co. v. Kassen,
A later case involving the same subject, also adhering to the rule announced in the McCormick case, was that of PennsylvaniaCo. v. Hart,
It would only incumber this opinion should we cite the very large number of cases supporting the rule of "actual discovery of peril" announced in the McCormick case, supra, but it may not be amiss to allude to the syllabi in a few of them.
"The 'last clear chance doctrine' applies only where *50
defendant had actual knowledge of plaintiff's peril in time to prevent injury by the diligent use of the means at hand."Emmons v. Southern Pac. Co.,
"In order to make one liable under the last clear chance doctrine, he must not only be aware of the danger in time to avert it, but must also know or have reason to believe that the injured party is oblivious of the danger and is in a position where he cannot extricate himself from it." Wallis v. SouthernPac. Co.,
"In an action for damages on account of the alleged negligent act of defendant, it is error for the court to charge the jury that the plaintiff may recover notwithstanding his contributory negligence, if the defendant failed to exercise reasonable care to avoid the injury after it discovered, or by the exercise of reasonable care might have discovered, that an accident was imminent." Oklahoma City Ry. Co. v. Barkett,
In the case of Miller v. Traction System,
These and a multitude of other cases cited in numerous text-books embody charges on the last chance similar to the one given in this case, to the effect that, if the jury should find that the plaintiff placed himself in a position of peril by his own negligence, *51 he could still recover if the jury should find that the defendant "ought to have become" aware of his peril in the exercise of ordinary care. Such cases do not support that statement of the last chance rule.
In Cleveland Ry. Co. v. Wendt,
The record discloses that there were two real, vital issues in this case: First, was the plaintiff negligent and did his negligence cause him to be placed in a perilous situation upon the track of the company; and, second, if he were found to be thus originally negligent, but his negligence had ceased and was not continuing, did defendant use ordinary care to prevent injuring him after discovering him in that perilous situation? It appears that the plaintiff was struck, not at a street crossing, but between street intersections. From his own testimony it appears that, while he had stopped at the south curb before crossing the street, he observed an automobile approaching the east, and that, after starting to cross the street, *52 he did not again look either to the east or to the west. It was for the jury to determine whether his conduct on that occasion, under the circumstances, was careless or otherwise; and, if careless, whether his carelessness, combined with that of the automobile driver, was the proximate, or the remote, cause of the accident. The perilous situation of the plaintiff was not created by the defendant; nor could defendant or its motorman reasonably have anticipated that the approaching east-bound automobile would strike the plaintiff and hurl him into the air over and upon the track in front of the advancing street car. Under such an emergency, it at once became the duty of the motorman to exercise such care as prudent men would have used under the same circumstances, after he saw and appreciated the peril; and if, with that knowledge, he did not use such care, then the negligence of the motorman became not the remote, but the proximate, cause of the accident, and the railway company would be liable.
This court has hold: "Since the plaintiff can 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." Drown v.Northern Ohio Traction Co.,
The defendant in error, plaintiff below, invokes the two issue rule to sustain his judgment under the principle announced in Sites v. Haverstick,
For the reason stated, the judgments of the courts below are reversed, and the cause will be remanded to *54 the trial court for further proceedings according to law.
Judgment reversed.
MATTHIAS, DAY, KINKADE and STEPHENSON, JJ., concur.
MARSHALL, C.J., and ALLEN, J., concur in the judgment.
Concurrence Opinion
I concur in the judgment of reversal in this case, upon the sole ground that the issue of the last clear chance doctrine was not made by the pleadings, and it was therefore reversible error to receive evidence upon that issue, and was also error to instruct the jury upon that issue. I cannot concur in any of the syllabi, and must dissent from the declarations of law in each of the five syllabi. I shall briefly state the reasons for my dissent.
The first, second, third and fourth syllabi relate to the rule of the last clear chance doctrine, but none of them places the reversal upon the grounds stated in Drown v. Northern OhioTraction Co.,
It is assumed in the majority opinion that the rule of last clear chance has become established in this state, as permitting recovery only if the defendant did not, after becoming aware of plaintiff's perilous situation, *55
exercise ordinary care to avoid injuring him. This is the statement of the first syllabus, and the second syllabus citesErie Railroad Co. v. McCormick,
"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 doctrine of last clear chance had its genesis in 1842, inDavies v. Mann, 10 M. W., 546, 152 Eng. Rep. Reprint, 588, and had its advent in the United States soon thereafter. It was introduced into the jurisprudence of Ohio in the Kassen case in 1892. I confidently assert that the first syllabus of theKassen case has never been changed in the syllabus of any case decided by this court in which the doctrine of last clear chance was involved.
The majority opinion refers to the case of Erie Rd. Co. v.McCormick, Admx.,
We need not conjecture as to the true significance of theMcCormick case. Four years after that decision was rendered, this court, with only one change in the personnel or the court, had an opportunity to speak. The case of Pittsburgh, C., C. St. L. Ry. v. Hall, 16 Or. D. (N. P.), 62, was decided by the superior court of Cincinnati, general term, in July, 1905, less than two years after the decision of the McCormick *57 case by this court. That court, speaking through Hoffheimer, J., declared that the rule was correctly stated in the Kassencase, and did not follow the McCormick case, because the court thought it did not apply. The principle declared in the superior court in the Hall case was that a charge given by the trial court in the following language was correct:
"I charge you that it is a well settled rule of the law of negligence that the plaintiff may recover notwithstanding his own negligence may have exposed him to the risk of the injuries 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."
This is exactly in line with the Kassen last chance declaration, and is diametrically opposed to the third syllabus of the McCormick case; yet by the majority of the superior court at general term that language was approved and the judgment affirmed. Thereupon the case was promptly carried to this court, where the judgment of the superior court was affirmed without report, on December 21, 1906, in Hall, Admx., v. P., C., C. St. L. Ry. Co.,
If this evidence is not convincing, there is some further corroborating evidence. The case of the Cincinnati Traction Co. v. Jennings, Admx., 19 Or. D. (N. P.), 338, 7 N. P. (N.S.), 462, was heard in the superior court of Cincinnati, general term, March 20, 1907, and again Judge Hoffheimer followed the rule in the Kassen case and approved the following charge of the trial court:
"That is, the car must be in the power, dominion *58 and government of the motorman, to such an extent that when he saw this vehicle on the track, or when by the exercise of ordinary care in his duty of looking out and watching for vehicles, he ought to have seen this cab on the track, he could stop his car within a reasonable time and reasonable distance, so as to avoid, if possible, the collision."
That decision was also taken to the Supreme Court on error and affirmed without report.
Our attention has not been called to, nor have we been able to find, a single decision of any Circuit Court or Court of Appeals making any declaration contrary to the Kassen case, except the one cited in the majority opinion in the instant case, viz., Ross v. Hocking Valley Ry. Co.,
If the Ross case was exactly similar to the Taylor case, though reaching opposite conclusions, one would offset the other as an authority, if it be admitted that either would be an authority, but the fact is that the Taylor case, which followed the Kassen case, was one *60 where the plaintiff was injured at a crossing and where the obligation to maintain a lookout existed, while the Ross case was one where that obligation did not exist. The Ross case was similar to the McCormick case, supra, where the person injured was on private premises of the railway company and where there was no obligation to maintain a lookout.
The majority opinion cites as authority West, Recr., v.Gillette,
"It is not necessary that the defendant should actuallyknow of the danger to which the plaintiff is exposed. It is enough if, having sufficient notice to put a prudent man on the alert, he does not take such precautions as a prudent man would take under similar notice. This rule is almost universally accepted."
Summing up the foregoing Ohio authorities on this subject, we must take violent issue with the majority opinion in stating that the McCormick case states the rule of the doctrine of last clear chance. The Kassen case has never been overruled and has never adequately been distinguished. In affirming at least three Circuit Court decisions without opinion, in which the rule declared in the Kassen case was followed, Ohio has definitely been placed in the list of those states holding a defendant responsible not alone for actual knowledge of plaintiff's peril, but also for knowledge which he might have acquired by the exercise of ordinary care. The majority opinion states that the records of this court show that the appellate courts have less difficulty and generally adhere to the rule requiring actual knowledge. We are able to find three or four such authorities, but in every such instance the evidence was undisputed that the defendant had actual knowledge, and there was therefore no occasion to state the rule otherwise. We have found no appellate court decision declaring the rule of actual knowledge, except where actual knowledge was shown by the undisputed testimony. The United States Circuit Court of Appeals for the Sixth Circuit must be regarded as an Ohio authority, and we are therefore referring to the case ofRobbins v. Pennsylvania Co., 245 F., 435, 441, where it is declared:
"The doctrine of last clear chance takes account of *63 the acts and omissions of both the person injured and the defendant, and applies only where the defendant has either actual notice or is fairly chargeable with notice of the perilof the person injured, and negligently fails to avoid the injury; but the rule never applies where the concurrent neglect of both directly contributes to the injury."
It is significant that above case was not decided until 1917, years after the McCormick case had been decided, and yet it was not cited, from which it is apparent that the Circuit Court of Appeals did not regard it as a last chance case. That court does, however, cite the case of Drown v. Traction Co., supra.
Other cases declaring the rule of liability if the defendant by the exercise of ordinary care should have known of plaintiff's danger, decided by the United States Circuit Court of Appeals for the Sixth Circuit, are as follows: Tutweiler v. Lowery, 279 F., 479, decided March 17, 1922, by Judges Knappen, Denison and Donahue; Gilbert v. Erie Rd. Co., 97 F., 747, decided by Judges Lurton, Day and Thompson; Retzer v. C., C., C. St.L. Ry. Co.,
The majority opinion cites several cases decided by other jurisdictions. Those cases have followed the rule requiring actual knowledge. Many other cases of a similar character could have been found. In fact no less than twelve of the states of the Union have followed that theory. On the other hand, a much larger number of cases can be found which follow the rule declared in the Kassen case, and no less than twenty-three of the states of the Union have definitely been placed in the column of those advocating liability on the ground of imputed knowledge. It must be said, therefore, that the weight of authority outside of Ohio is in favor of the doctrine of imputed knowledge. By *64
reason of the contradiction among the courts of last resort throughout the Union, we may turn with satisfaction to the pronouncements of the United States Supreme Court. InKansas City Southern Ry. v. Ellzey,
"That doctrine * * * amounts to no more than this, that a negligent defendant will be held liable to a negligent plaintiff if the defendant, aware of the plaintiff's peril or unaware of it only through carelessness, had in fact a later opportunity than the plaintiff to avert an accident."
The doctrine of last clear chance is sometimes called "the humanitarian doctrine."
It ceases to be humanitarian when one who has negligently placed himself in a position of peril is virtually declared to be an outlaw and not entitled to the considerations of ordinary care to discover his peril before injuring him. The case ofDavies v. Mann, supra, in which the doctrine found its origin, was one for damages for killing a lowly ass, the most humble of all domestic animals. Shall we be less humanitarian in applying the doctrine to the injury of human beings in this more enlightened age of complex traffic conditions?
In the majority opinion we find the following:
"In order to support a pleading based on recovery after actual discovery of the peril, it is necessary to plead facts definitely giving rise to a situation permitting recovery after an awareness of peril. We see no reason why a plaintiff may not plead a case of the usual, ordinary negligence and also plead a state of facts, invoking the rule of the 'last clear chance' if he believes he can prove facts invoking the application of the rule. There is no inconsistency in so pleading; nor needthe pleader confess his own negligence in order to invoke therule." *65
It is apparent from this statement, and more especially the part in italics, that the majority opinion utterly misconceives the character of the rule itself. The doctrine of last clear chance presupposes negligence on the part of the plaintiff, and has no application where the position of peril of the person injured is not due to negligence for which plaintiff is responsible. The doctrine cannot be applied in any case where contributory negligence is not definitely put in issue by the pleadings. By all the authorities prior to the instant case, and by all text-writers without exception, it is declared to be a qualification of the doctrine of contributory negligence. We know of no better authority for the foregoing statement thanCleveland Ry. Co. v. Wendt,
"In Cleveland Ry. Co. v. Wendt,
The doctrine of last clear chance is so called because the courts have said that the person who has the last clear chance of avoiding an accident is considered in law solely responsible for the accident notwithstanding the contributory negligence of the person injured. In most jurisdictions it is a qualification of that statement that the negligence of plaintiff must have ceased and that it must not continue up to the time of the injury. *66
We shall notice only one other declaration in the majority opinion, and that relates to the two issue rule. It is said in the fifth syllabus:
"Where a general verdict is rendered finding for the plaintiff, and the trial court errs in its instructions regarding the duty of the defendant under the last chance rule, the two issue rule cannot be relied on to uphold the verdict."
Surely this cannot be the law. In the case ofKnisely v. Community Traction Co.,