[1] This appeal is from a judgment of nonsuit. The trial court's ruling must, therefore, be examined in the light of the uniform decisions of this state, too numerous to require citations, which hold, in effect, that every inference of fact and intendment of law must be liberally construed in favor of sustaining the case made by plaintiff, to the end that causes may be determined upon their merits.
Plaintiff's intestate, John A. Coakley, a plasterer by occupation, was her husband, and both resided at the city of Marysville, this state. The defendant, Lucio Ajuria, was also a resident of said city, and proprietor of the Espanola Hotel. The question presented by the appeal is whether the intoxication of said John A. Coakley, deceased, was as a matter of law the proximate cause of his death, which resulted instantly upon being struck by an automobile driven by defendant, as held by the trial court, or whether, as contended by appellant, it was the remote cause, considered in the light of the attending undisputed facts and circumstances. The injuries which caused the death of said Coakley were inflicted on C Street, one of the principal thoroughfares of said city, between Second and Third Streets, at the hour of 11:45 P.M. Said street is a north and south street, *747 intersected at right angles by said Second and Third Streets. At the time Coakley was killed the street was clear of automobile and pedestrian traffic and obstructions of every kind and, repeating the words of witness Fred R. Wilson — the proprietor of a garage located in the immediate vicinity of the place where Coakley was killed — it was lighted so "you could see a person or a dog or anything plainly." Said Wilson was an eye-witness to the entire incident. His uncontradicted statement of the facts is that he was on the easterly sidewalk near his place of business when he first observed Coakley, with whom he had no prior acquaintance, leaning against a window of the next door garage, apparently asleep from the effect of intoxicating liquors. Presently Coakley aroused himself from his stupor and in an unsteady gait started to cross the street to the westerly side. Wilson, observing his plight, tried to persuade him to engage a taxicab to take him home, but Coakley replied that he had but a short distance to go. He came back, however, to the sidewalk and walked up the sidewalk a short distance and again started to cross the street in a staggering stride. When fifteen or twenty feet from the westerly curb and well westerly of the center line he staggered to his fall. He struggled helplessly for a few seconds and finally succeeded in raising himself to his hands and knees, and while in that position he was struck by defendant driving a Paige 66-touring car. Defendant was approaching at this time on the westerly or wrong side of C Street, going in a northerly direction, and according to his testimony his lights were dimmed to the degree that they would not carry more than fifteen or twenty feet, and his brakes were not in good condition, as shown by his testimony and the tire burns upon the pavement, which showed that only one wheel was holding. The impact with Coakley's body crushed in the parietal bone, thereby exposing the brain and the tissues, fractured four ribs and carried his body seven or eight feet forward before it was thrown clear of the automobile. The car skidded and traveled seventy-five or eighty feet before it was brought to a stop. As the defendant hit the body of the deceased a bystander, Al Hyman, called to him, "Stop there, you killed a man." There is also testimony in the record that skid marks made by one wheel of the automobile were visible upon the pavement beginning at a *748 point twenty feet distant southerly from the spot where decedent's body was struck.
The defendant, called as a witness by plaintiff, testified that he did not see the decedent until the instant he was upon him, at which time he applied his brakes, as illustrated by the following parts of his testimony which appear in the record:
"Question: You see him when you hit him? Answer: I see the black spot. I am not sure man, or what." Asked if his lights were burning brightly, he answered no, "not too brightly," and estimated that he was able to see objects only fifteen or twenty feet distant. The speed of the automobile, in terms of mileage, was not approximated by any witness except the defendant, who testified at one stage of the proceeding that he was traveling between twelve and fifteen miles per hour, and at another that he did not know how fast he was traveling. The twelve or fifteen miles per hour testimony is, of course, out of all reason in the face of the distance that his car carried the body of the deceased and as shown by the skid marks and the distance the car traveled before brought to a stop as told by an apparently disinterested eye-witness. What the defendant had been doing or where he was immediately before starting on his unfortunate journey he refused to divulge. He was first seen to turn from Second Street into C and proceed northerly at an increasing rate of speed until he struck the decedent. Police Officer Hopkins was upon the scene four or five minutes after the fatality occurred and gave testimony as to the skid marks on the pavement, which tended to rebut the defendant's testimony as to the speed the car was under at the time of the impact. The physical facts demonstrate beyond doubt the position of the car upon the street and the further fact that defendant was driving at a high rate of speed. The testimony of Mr. Wilson, who actually saw defendant approaching at some distance southerly, is to the same effect. Examined from the viewpoint of a nonsuit judgment we have the following established facts: The defendant was traveling in anortherly direction on the west side of an unobstructed street at a rapid rate of speed with insufficient headlights and inadequate brakes. The evidence is further to the effect that, notwithstanding the inadequacy of defendant's headlights, *749 the zone in which decedent was hit was sufficiently lighted to have enabled the defendant to avoid the accident had he been exercising ordinary care. Unless it may be said as a matter of law that intoxication per se bars recovery under every conceivable set of circumstances, the judgment of nonsuit must be reversed.
[2] We think the learned trial judge took an erroneous view of the law applicable to the facts, as is made apparent from an oral opinion which he delivered directing the order of nonsuit. While the reasons of a trial court so given do not in a strict sense constitute a part of the record on appeal, yet where they furnish, as in this case, the basis of the court's action, and really constitute the only grounds upon which the judgment may be affirmed, it is proper to give them special consideration. The trial court observed that the evidence showed negligence on the part of the defendant in the operation of his automobile at the time the accident happened, but concluded that the acts of Coakley were not the acts of an ordinarily prudent man, and, therefore, he was guilty of contributory negligence; that had decedent not gone upon the street and lain down the accident would not have happened. Speaking of the decedent's conduct and its legal status the court said: "He [decedent] had gone out in the street and fell down on the street and lay there on the business street of the city in a drunken, helpless condition. Had he not done that he wouldn't have gotten hurt. A man has no right to get drunk and stagger out in the street and fall down and then if someone runs over him say he ought to have seen him. His acts constitute negligence per se." Undoubtedly, had decedent not become intoxicated and lain down in the street the accident would not, as a result of the law of concatenation of events, have happened, but decedent's antecedent indiscretion or negligence furnishes no answer to the claim of actionable negligence against the defendant, unless the negligence of the decedent concurred with and co-operated with the negligence of the defendant. In other words, if the negligence of the decedent was a remote and not the immediate cause of the injury and the negligence of the defendant was the proximate and immediate cause of the injury the intoxication of the decedent would not of itself bar plaintiff's cause of action. *750
This court very early, in Needham v. San Francisco S.J.R.R. Co.,
In Robinson v. Pioche,
Many years ago the English courts summarized the law which rules this case, as follows: "If a man is lying drunk on the road, another is not negligently to drive over him. If that happened, the drunkenness would have made the man liable to the injury, but would not have occasioned the injury."
The famous case of Davies v. Mann, 152 Eng. Reprint, 588, Parke, B., which gave rise to the doctrine of the last clear chance, presents the case of a donkey placed by the owner upon the highway to graze with its forefeet fettered, and while so fettered it was killed by being driven upon by the defendant's servant, who was held to be driving too fast down a slight descent. The immediate cause of the injury was held to be the negligent driving of the defendant's servant, and not the putting the ass upon the highway. The question was disposed of by a very renowned judge in these words: ". . . although the ass may have been wrongfully there, still the defendant was bound to go along the road at such a pace as would be likely to prevent mischief. Were this not so, a man might justify the driving over goods left on a public highway, or even *752 over a man lying sleeping there, or the purposely running against a carriage going on the wrong side of the road."
The foregoing expresses the judicial view which obtains not only in this country, but, so far as we are advised, in all jurisdictions in which the English and American standards are recognized.
[3] The fact that a person when injured was intoxicated is not in itself evidence of contributory negligence, but it is a circumstance to be considered in determining whether his intoxication contributed to his injury. If it did he cannot recover. If it did not it will not excuse the defendant's negligence. Ordinarily it is a matter to go to the jury. (Beach on Contributory Negligence, 3d ed., secs. 197, 395; Trumbull v.Erickson, 97 Fed. 891, 893; Haug v. Great Northern R. Co.,
Judgment reversed.
Richards, J., Shenk, J., Curtis, J., Preston, J., Langdon, J., and Waste, C.J., concurred. *753