159 S.E. 53 | W. Va. | 1931
Lead Opinion
This suit is the outcome of an unfortunate automobile accident which occurred on the afternoon of March 18, 1929, *580 on the main state highway between Buckhannon and Weston. Plaintiff's decedent, Rebecca Smith, traveling toward Buckhannon on a regular passenger bus had alighted from the bus on the right-hand (south) side of the road, and after having walked back along-side of the bus on the edge of the road, she had started across the road in the rear of the bus, when she was struck by defendant's car which he was driving toward Weston, whereby she was injured so severely that she died enroute to the hospital. The trial in the circuit court resulted in a verdict and judgment for plaintiff for $4,000.00. Defendant prosecutes this writ of error.
The highway at the point of the accident was straight for several hundred yards and had a sixteen foot concrete surface with a berm on each side. Houses flanked the road at irregular intervals, making the section a suburban one. Mrs. Smith's evident intention was to cross the road for the purpose of going to her home which was on a side road which intersected the highway at that point. The evidence is conflicting as to whether the bus stopped exactly opposite this intersecting road or had proceeded by it for a few feet in the direction of Buckhannon. There is also a conflict as to whether Mrs. Smith walked across the highway directly behind the bus or whether she walked back some distance from the rear of the bus before crossing. The jury was warranted in believing from the evidence that she pursued the latter course. The evidence preponderates that she had almost reached the other side of the road when she was struck by defendant's car.
Several men, proceeding toward Buckhannon in an automobile following the bus at a short distance, saw the accident and testified at the trial. Their evidence is uncontradicted that Mrs. Smith did not look to her right, the direction from which the defendant was approaching. The bus having immediately resumed its journey toward Buckhannon, there was nothing to have obstructed Mrs. Smith's view of defendant's approaching automobile had she looked in that direction. Two of these witnesses say that the defendant's automobile was from 40 to 50 feet away from Mrs. Smith when she reached a point approximately in the middle of the road. The testimony *581 as to these two matters, first that the defendant's automobile was 40 to 50 feet from Mrs. Smith when she stepped out into the highway, and, second, that defendant's automobile could have been stopped in about its length, is preponderating, therefore, they will be dealt with as proven facts.
Defendant himself testifies that when he reached a point about six hundred feet from the bus, he noticed someone alighting from the bus, and that it was so far away that he thought the person was a school girl. He says that he kept watching to see what she was going to do, but as he drew near the bus his attention was attracted to an oncoming car and then he did not again see her until his wife who was riding with him screamed, and then it was too late to avoid striking the deceased. How defendant could have failed to see Mrs. Smith if, as he says, he was watching an oncoming car, it is difficult to see, for she would be almost directly in his line of vision. He further states that he was driving at the rate of about 20 miles an hour, and in this he is corroborated by a preponderance of the evidence; that he did not slacken the speed of his automobile in the least when he saw the parked bus and the passenger alighting or as he approached the point where the passenger had alighted; and that he sounded no signal until it was too late. A truck driver who was following closely behind defendant's car says that he saw the parked bus and the passenger alight and, after walking back on the berm for 40 or 50 feet, start across the highway, and furthermore, that he stopped his truck before the accident occurred. The testimony of this witness seems to establish the fact that had defendant been looking he could have seen Mrs. Smith in ample time to avoid the accident.
Defendant was inexcusably negligent in the manner in which he approached the point where the accident occurred. He saw the bus; he saw that the bus had stopped and that someone had alighted. He says he knew there was not much likelihood that the passenger who had been discharged from the bus would leave the road from the south side because there was a ditch and an embankment there. He lived in that general community, and knew that people lived along the *582 intersecting road on the opposite side of the highway. Yet he did not keep a close observation of the road immediately beyond the rear of the bus. The jury was warranted in believing from the evidence (we think a clear preponderance) that the bus started forward after the deceased had alighted therefrom and proceeded on its way as she was walking along the berm in the opposite direction. Defendant further admits that he neither slackened the speed of his car nor sounded an alarm. As a consequence of all of which he was too close upon Mrs. Smith to avoid hitting her when her presence in the traveled portion of the highway became known to him through the information which he received from his wife. He further admits that he probably would not have seen the deceased immediately before striking her had not his wife given alarm.
It may be accepted as settled law that the driver of a motor vehicle is not ordinarily liable for injury to a person who suddenly steps into the path of such moving vehicle from the shelter of a standing vehicle or some other stationary object.Brien v. Gordon, (Pa.) 34 A.L.R. 1511; Jean v. Nester, (Mass.)
True, as a general rule, contributory negligence on the part of an injured person precludes relief in damages; and concurring negligence on the part of a plaintiff and defendant at the instant of a collision ordinarily bars recovery. The rule as to concurring negligence is particularly applicable in cases where there has been something to put the injured person *583
on guard after he has placed himself in a position of peril, as in the case of Waller v. Ry. Co.,
It is not to be understood, however, that the salutary, sensible and practical doctrine of contributory negligence, stands as adamant, immovable, unalterable and relentless. It is not a rule of iron. It carries with it an exception or qualification which is as well grounded in American and English jurisprudence as is the rule itself. In fact the qualification not only proves the rule but vitalizes and humanizes it. This is known in the law as the doctrine of last clear chance. It has many variations, and much confusion has been evidenced in the extended and manifold discussions of the same. The base of the rule is this: A plaintiff who has negligently placed himself or his property in a situation of imminent peril and is either unconscious of the situation, or unable to avoid the danger, or both, may nevertheless recover damages of the defendant who negligently inflicts injury, if the defendant could have avoided the injury after discovering the plaintiff's peril. This proposition is generally recognized in American and English cases. It is in the refinements and extensions of the basic principle wherein lie difficulty and confusion.
Should the principle be extended to a case wherein the situation of the plaintiff is as stated in the base rule,supra, and the defendant did not actually know of the plaintiff's peril in time to avoid the injury, but, in the exercise of reasonable care under the circumstances, would have known of the plaintiff's perilous situation in time to have avoided the injury? Such is the case at bar, wherein the plaintiff's decedent, negligent in attempting to cross the highway without looking to her right, was evidently unconscious of her imminent *584 peril, and the defendant, though not actually seeing her in the act of crossing the street in time to avoid the collision, could and should have seen her in time to have avoided running her down if he had been in the exercise of reasonable care when she first came into the line of his vision as she started across the highway.
The courts of many of our states answer this query in an emphatic negative. It is said that actual knowledge by the defendant of the plaintiff's peril is the sine qua non of the doctrine; that the imputed knowledge idea is out of place; that the last clear chance doctrine is founded on the basis of actual knowledge by the defendant of the plaintiff's peril and that a defendant cannot fairly be said to have had a last clear chance to avoid inflicting injury if he did not actually see the peril in time to avoid the injury; that where neither party sees the other there is a situation of concurring negligence; that each owes a duty of lookout; hence no sound basis for recovery by the injured party where the defendant did not actually know the situation. However, the rationale for the extension of the doctrine to a situation wherein the negligent defendant could and should have seen the plaintiff's peril and should have avoided inflicting injury on him is not without its vigorous champions. 45 Corpus Juris, page 990. Such situation is accentuated where there is owing by the defendant to the plaintiff a duty to keep a reasonable lookout commensurate with the instrumentality which he is operating, the locality and attendant circumstances considered. In railroad cases, for example, the duty imposed upon trainmen of maintaining a reasonable lookout for travelers at highway crossings is more exacting than the duty of lookout for trespassers on the railroad right of way. In street railway cases there is a more exacting obligation of lookout at street intersections than between intersections. In the driving of automobiles upon public thoroughfares there is a duty at all times imposed upon their operators to maintain a lookout for persons and property on the highway and to use reasonable care to avoid inflicting injury on such persons or property. Whether, in accordance with such general duty, it should be said that an automobilist should at all times be subject to an *585 extension of the last clear chance doctrine to such a degree as to make him responsible for injury to a negligent person if the automobilist, though not actually seeing the person or property in time to avoid injury, but in the exercise of reasonable care could and should have seen such person or property, is not necessary for us now to discuss, because that is not the immediate situation under consideration. Here we have superadded circumstances which are of outstanding nature and controlling importance, namely, the admission by the defendant that he saw a girl or woman alight from the standing bus; that he knew that it was unlikely that the passenger would leave the highway to the south; that he knew that a number of persons resided on the opposite side of the highway from where the girl or woman left the bus. These facts and circumstances should have put the defendant on guard; his senses should have been aroused; he should have been on the alert. The reasonable care and precaution, the exercise of which devolved upon him under such circumstances, was quite a different thing from the reasonable care of lookout which devolves upon an automobilist upon open country road where nothing has come to his attention to indicate a situation pregnant with possibilities of disaster.
Apropos of the idea that where a duty rests upon a defendant to keep a lookout for a person in peril, the imputed knowledge theory prevails, we find this succinct statement in the case ofDent v. Bellows Falls Street Ry. Co., (Vt.)
Reviewing the West Virginia decisions on the doctrine of last clear chance, we find that the imputed knowledge extension is recognized in many of our cases. Among those clearly recognizing this extension are: Waller v. Railway Co.,
In Attelli v. Laird, supra, the last clear chance doctrine was applied in a situation somewhat similar on its facts to the case at bar. Plaintiff's decedent after alighting from a truck carrying workmen which had parked on a much traveled highway, attempted to cross the road without looking for approaching traffic. Defendant's driver could have seen the parked truck 300 feet away, and, the plaintiff's decedent when he stepped into the highway 175 feet away, but he came on without slackening his speed or sounding a warning although he had passed a similar truck not far down the road with workmen getting aboard it. Twenty-five feet from plaintiff's decedent the driver discovered him and attempted in vain to avoid hitting him. Under this evidence it was held to *588 be a jury question whether defendant's driver had the last clear chance to avoid the accident.
In McLeod v. Laundry Co., supra, there was a situation where, by reason of the plaintiff's decedent having started suddenly across the street in front of defendant's delivery truck the driver thereof had no opportunity to avoid striking her. She attempted to run across the street in a driving rainstorm with an umbrella pulled down over her face and right shoulder. Defendant's truck was but ten feet away and to her right when she stepped off the curb; hence all efforts of the driver to stop the vehicle before injuring her were without avail. It was held that the last clear chance doctrine did not apply. The driver not only did not see her in time to avoid the accident but in the exercise of reasonable care he could not have seen her.
The majority of the Court does not share the view expressed by JUDGE HATCHER in the latter part of the opinion inKeller v. Ry. Co.,
If the defendant had seen the deceased when she started across the highway 40 to 50 feet in front of him (her unconsciousness of her peril being evident from her demeanor), and he had taken no precaution to avoid injuring her (it appearing from the evidence that at the speed at which it was moving his automobile could have been stopped in about its length), clearly he would have been liable in damages under the unquestioned last clear chance doctrine (above referred to as the base rule). If he did not see her at the distance indicated, he was none the less negligent, because, considering the dangerous character of the instrumentality which he was employing, the fact of his having seen the plaintiff alight from the bus, and his knowledge of the locality, it was his reasonable duty to have seen her when she was attempting to cross within the direct line of his vision. One may not negligently and carelessly use on a public road a vehicle *589 which, because of its weight, power and speed, is capable of inflicting grievous injury on other persons, and then, when an accident has happened, invariably escape responsibility because, forsooth, the victim of the accident was also negligent, and defendant did not actually see plaintiff's peril in time to avoid inflicting the injury. The defendant in such case may escape liability or he may not, depending on the particular circumstances of the case. If, as in the case at bar, the circumstances are such as should have put the defendant on guard, we perceive no basis in sound reason why he should not be held liable.
It is stated in effect in many cases that although knowledge of the plaintiff's peril may be imputed to the defendant where the latter owed a duty of reasonable lookout, such principle cannot be applied where the negligence of the plaintiff concurs with that of the defendant at the instant of the injury. Typical of these cases is Dyer v. Power Light Co., (Me.)
In 2 Thompson on Negligence (2d Ed.) sec. 1476, the learned author in expressing his condemnation of the doctrine that a street railway company will not be liable in damages for injuring a person who was guilty of negligence in exposing himself to danger, unless the operatives of the street car actually discovered the peril in time, by the exercise of ordinary care, to avert injury, uses this language: " It ignores the obvious conclusion of sense and justice, that the fact that they, and not the driver or the foot passenger, are propelling the instrument of danger, puts upon them the duty of exercising constant care and watchfulness to avert death or injury to the other members of the public who use the highway." One is impressed that the learned author's criticism of the doctrine he is discussing with reference to street railways applies with great force to automobilists. *591
We think it is a sound principle that the last clear chance doctrine is properly extended to a case where an automobilist, by reason of failure by him in his plain duty to maintain a lookout for the persons and property of others on the highway, commensurate with the danger indicated by attendant facts and surrounding circumstances known to him, and which are such as to have put him on the alert, causes injury to a pedestrian (though such pedestrian was himself concurrently negligent), where the peril should have been seen and comprehended by the automobilist and the injury avoided in the exercise of reasonable care commensurate with the situation. Such case constitutes an exception to the general rule which precludes recovery by a plaintiff whose negligence has concurred with the defendant's.
The principal objection to plaintiff's instructions is that certain of them, though binding in nature, ignored the defense of contributory negligence. In the light of the fact that under the rules of law, above set forth, properly applicable to the facts of this case, the contributory negligence of the deceased does not preclude recovery in this action, the omission of reference to that defense in plaintiff's instruction does not constitute prejudical error.
As to instructions tendered by the defendant and refused by the court, we find that they were either covered in substance by instructions which were given on behalf of the defendant or else they embodied propositions which were inconsistent with the doctrine of last clear chance.
The remaining point of error goes to the action of the trial court in overruling a motion of the defendant to declare a mistrial on account of the fact that on cross-examination of J. L. Jennings, a justice of the peace of Upshur County, who was one of defendant's witnesses, there was at least inferentially disclosed to the jury the fact that the defendant was insured against loss on account of the accident upon which the suit is predicated. The situation arose in this manner: On either the evening of the day of the accident, and within a very few hours thereafter, or on the evening of the succeeding day (there is confusion in the record as to the exact time) an anomalous sort of hearing was held before the said magistrate. *592 The record does not disclose at whose instance the hearing was held. Witnesses to the accident were in attendance at the migistrate's office and were examined under oath by both the magistrate and counsel representing the insurance company. No one representing the husband or the deceased woman was present at the magistrate's hearing. At the trial the magistrate was put on the witness stand by the defendant to explain this most unusual procedure. On direct examination the magistrate testified: "Well, there were parties * * * and I am not sure about who those parties were * * * that thought there should be an inquest held, and I didn't see the necessity of it myself * * * but, finally decided that I would hold a preliminary examination and ascertain whether or not it would be necessary * * * that is, to hold an inquest. I got the names of the parties who were supposed to have been nearest this accident at the time * * * and they were examined." He further testified that the evidence was taken down in shorthand. On cross-examination he was asked this question: "In other words, the testimony wasn't taken down for the purpose of this preliminary hearing at all?" To which inquiry he answered: "No, my understanding was that the insurance company wanted it taken down." Objection was immediately interposed by the defendant, whereupon the court said to the jury: "Yes, gentlemen, that will have to be stricken out, and the jury is instructed to pay no attention whatever to this statement of the witness, and we will not discuss it further at this time, gentlemen." The information which the magistrate thus injected into the record with reference to the insurance company was clearly voluntary on his part. The question was not so framed as to elicit that sort of a reply, nor could counsel who was cross-examining the magistrate have anticipated that any such reply would be made.
In the trial of personal liability actions the fact that the defendant is protected by insurance should not be injected into the evidence. Christie v. Mitchell,
We affirm the judgment of the trial court.
Affirmed.
Dissenting Opinion
I have no quarrel with the majority of the Court merely for disagreeing with my personal expression in the last paragraph of the opinion in Keller v. Ry. Co.,
I cannot agree with the majority opinion, because (with all deference) it seems to me to be illogical, to be inconsistent with the common law doctrine of contributory negligence to which we are pledged by our constitution, to be inconsistent with our own decisions and to be inconsistent with most of the very cases cited in the opinion. It seems illogical to impute knowledge of the situation to the motorist, and not impute like knowledge to the pedestrian, when she had equal opportunity with the motorist of acquiring the knowledge. It seems illogical to hold that due care by the defendant would have prevented the accident and yet ignore the correlative fact that due care by Mrs. Smith would also have prevented it. Nashua Co. v. Rr. Co.,
The case of Dent v. Bellows Falls St. Ry. Co., (Vt.)
The Kentucky cases cited in support of the doctrine of constructive knowledge, do support the conclusion of the majority; but the quotation from Weidner v. Otter, shows beyond peradventure that the Kentucky rule is based squarely on the *596 doctrine of comparative negligence — a doctrine which the majority refuses to recognize openly.
Consol. R. Co. v. Armstrong, (Md.)
The majority conclusion is opposed by Gibbard v. Cursan, (Mich.)
The majority conclusion is opposed by Nehring v. Conn. Co.,
The supreme court of Kansas supports the majority opinion on the doctrine of imputed knowledge, as shown by the cited case of Muir v. Fleming, 227 P. 536; but the Kansas court (like the courts of Vermont, Connecticut and Michigan) opposes the conclusion of the majority, because of actively concurring negligence of the injured party. "A plaintiff who has received an injury occasioned by the negligence of the defendant, but who could have avoided it by the exercise of ordinary care on his own part, cannot recover damages therefor, although the defendant ought to have discovered (but did not in fact discover) his peril in time to have prevented the accident, where the plaintiff's negligence continued up to the very moment he was hurt, and where the exercise of reasonable diligence before that time would have warned him of his danger and enabled him to escape by his own effort." Dyerson v.Railroad Co.,
West Const. Co. v. Ry. Co., (N.C.)
The case of Standard Oil Co. v. McDaniel, (D. of C.) 280 F. 993, supports the majority on the doctrine of imputed knowledge. But this case loses in persuasive authority, because the District of Columbia is under federal control and the federal statute has abolished in part the common law rule of contributory negligence. The quotation from Kansas CitySouthern Ry. v. Ellzey,
The majority conclusion is opposed by Southern Ry. Co. v.Bailey, 67 S.E. 365,
The majority conclusion is opposed by Roanoke Co. v. Carrol, (Va.)
The majority conclusion is opposed by Green v. Ruffin, 125 S.E. 742,
C. O. Ry. Co. v. Corbin's Admr., (Va.)
Barnes v. Ashworth, (Va.)
In passing I will add that in recent years a statute has been enacted by the legislature of Virginia which prevents the contributory negligence of an employee of a common carrier from barring a recovery for personal injuries. 1930 Va. Code, sec. 5792. I am apprehensive that this statute has colored the view of the Virginia courts in other cases involving personal injuries, and I do not consider the more recent Virginia decisions on the doctrine of contributory negligence as Simon-pure as of yore.
It is true that Judge Thompson warms up to the doctrine of comparative negligence in sec. 1467 of his Commentaries on Negligence, quoted in the majority opinion. But the majority overlooks that this learned author approves and illustrates the rule that the plaintiff cannot recover when both parties are contemporaneously and actively at fault, as follows: "The traveller fails to exercise his faculties to discover the approach of a train, and those in charge of the train fail to give the proper signal on approaching the crossing. When he discovers the train on the one hand, and when the trainmen discover him on the other, it is too late to avoid the collision. In such a case, unless the doctrine of contributory negligence is abolished, there can be no recovery. The negligence of each is a proximate cause of the catastrophe; the negligence of one is just as near the catastrophe as that of the other." Sec. 237. See also sec. 1471.
It therefore appears that the majority opinion is supported fully by only the decisions of Kentucky, Missouri and by one decision in Virginia (McGowan v. Tayman); that the Kentucky decisions are based on "the exploded heresy of comparative negligence" (Johnson v. Stewart,
The majority opinion would avoid this crushing weight of authority on the theory (according to the opinion) of "superadded circumstances which are of outstanding nature and controlling importance," which "should have put the defendant on guard; his senses should have been aroused; he should have been on the alert." Such strong words as "outstanding" and "controlling" are not aptly used unless the majority is of opinion that the "superadded circumstances" were equivalent to actual notice to defendant of what followed. If of such opinion what occasion is there for the majority to resort to an extension of the doctrine of imputed knowledge? Why turn to a strange minority faith when it is settled law that if there is time to prevent an accident concurring negligence is not a bar in case of actual knowledge? The circumstances mentioned *604 follow (enumeration mine): "The admission by the defendant (1) that he saw a girl or women alight from the standing bus; (2) that he knew that it was unlikely that the passenger would leave the highway to the south; that (3) he knew that a number of persons resided on the opposite side of the highway from where the girl or woman left the bus." I cannot see that the fact (1) of Mrs. Smith alighting from the bus to the berm of the highway has any more significance than if she had come out of a house or other building to the berm, or if she had been walking on the berm without defendant's seeing where she came from. The fact that she started walking along the berm simply imported that she was going somewhere, and of itself can be no more singular than the conduct of any other person walking on the sidewalk or the highway. The majority opinion would amplify that circumstance by the alleged admission of defendant (2) "that he knew that it was unlikely that the passenger would leave the highway to the south." This charge against the defendant is based solely upon his testimony as follows: "Q. You knew from the location of the land there, and the ditch between the road and the railroad, that she (Mrs. Smith) could not cross directly from that point to any of the houses on your left, could she? A. No. She would not be apt to cross that ditch and climb the bank." It will be noted that this question and answer apply to crossing the ditch directly at the place the bus stopped. Elam McVaney, one of plaintiff's own witnesses, testified (without contradiction or explanation) that people did cross the railroad track from the highway "on up above" where the bus stopped. The opinion of the defendant that Mrs. Smith would not "cross that ditch and climb the bank" or cross the railroad directly from the point where the bus stopped, did not exclude the idea that she might cross "on up above." It is true (3) defendant knew that a number of persons resided north of the highway, yet (a) it appears from the testimony of McVaney that about the same number resided south of the highway and (b) it does not appear that defendant knew Mrs. Smith or where she resided. Consequently, I contend that the answer of defendant above, does not warrant the broad construction given it by the *605 majority, and that the so-called "outstanding" facts could not have impressed the defendant with any definite idea of the direction Mrs. Smith would take.
While the majority opinion, in more than one place, says that the circumstances "should have put the defendant on guard," yet the opinion no where specifies against what he should have been on guard. Had this unfortunate lady been feeble-minded or deaf, and had given indication to the defendant of these afflictions or that she was absent-minded, then it might be justly said that the defendant should have been on guard against her lack of care in crossing the road. But there was nothing in her bearing or conduct when he observed her at the side of the bus to warn him that she would not proceed as a normal person should. Assuming that the circumstances should have impressed him with the idea that Mrs. Smith would cross the road, yet if there was no indication that she might cross in a negligent manner, there was nothing to make him particularly "alert" or "arouse his senses beyond the ordinary" as the opinion charges. Without special warning that Mrs. Smith was about to expose herself to danger from his car he could owe her no more than the general care he owed all pedestrians. Ind. Tr. Co. v.Croly,
If the circumstances preceding Mrs. Smith's attempt to cross the road were not sufficient to warn the defendant that she might proceed in a negligent manner, then the circumstances have no proper part logically in applying the doctrine of the last clear chance. "The inquiry involved in the application of this doctrine of the last clear chance begins only when the injured person has to come into a position of actual present peril; it is not concerned with earlier situations or happenings. This distinction is an important one and should be constantly borne in mind, for otherwise the place occupied by contributory negligence in our law is lost sight of."Bujnak v. Connecticut Co.,
The majority opinion does not mention this presumption which is ordinarily the lawful right of a motorist. Failure to accord this right to defendant may be due to the conception of his conduct by the majority as "inexcusably negligent." I do not get that conception from the evidence. The opinion states that the speed of defendant's car at the time of the accident was 20 miles an hour and that the car could have been stopped in its own length. If so, the speed was lawful and the car was under control. Unless motorists be required to have the gift of divination, the defendant was not negligent in failing to anticipate that Mrs. Smith would be oblivious to danger. The majority opinion takes it as established "that had defendant been looking he could have seen Mrs. Smith in time to avoid the accident." I presume what the majority means is that if the defendant had been looking out specially for Mrs. Smith he could have seen her in time. But it appears from the evidence that after defendant lost sight of Mrs. Smith (at the side of the bus) his attention became fixed on passing *607 an approaching car, which was within 100 to 150 feet at the time of the accident. Unless the majority can say that defendant was in no danger from and owed no care to the oncoming car, then it cannot claim that his observation of the car was culpable; and unless the majority can say that defendant was forewarned of Mrs. Smith's negligent deportment, then it should not censure him for watching that car and thus failing to note her lateral approach. The vision of Argus exists only in mythology.
When Mrs. Smith reached a point of danger, the center of the road, she was then some 40 or 50 feet in advance of defendant's car, according to the majority opinion. At 20 miles an hour, the car was traveling at the rate of 29 1/3 feet a second. At that speed, less than two seconds passed from the time Mrs. Smith was at the center of the road and the moment of impact. The main witness for plaintiff says that Mrs. Smith was about 15 feet from the car when she arrived directly in front of it. If so, less than one second elapsed after the decedent stepped into the pathway of the automobile until she was struck. Even under the doctrine of imputed knowledge, where was theappreciable interval giving defendant time to have acted effectively? Barnes v. Ashworth, supra, gives the following statement of the factors necessary to make such an opportunity: "The last clear chance implies thought, appreciation, mental direction and the lapse of sufficient time to effectively act upon the impulse to save another from injury." There must have been an appreciable interval of time between their actual or imputed knowledge of the situation and the collision." Waller
v. Ry. Co.,
The plaintiff's case was tried on two theories: one, that Mrs. Smith was not in fact negligent, and the other that, if so, the defendant had the last clear chance to avoid the accident. The question of her negligence was submitted to the jury with involved instructions of law. (Plaintiff's instructions 7 and 8.) This seems prejudicial error to me. There was no evidence whatever supporting the theory that Mrs. Smith was not negligent, yet the jury could well have inferred from the instructions that the law held her blameless.
The majority cites Ambrose v. Young and Jefferies v. Ashcraft in support of its position as to the voluntary testimony indicating that the defendant carried insurance. Witnesses for defendant stated that Mrs. Smith came almost immediately from behind the bus right into the path of the automobile. There is no preponderance of the witnesses numerically for plaintiff, and no specific reason for giving credence to one set of witnesses over the other. This is illustrated by the fact that a former trial resulted in a hung jury. These circumstances differentiate this case from Ambrose v. Young and Jefferies v.Ashcraft, and I am of opinion that evidence of the defendant having insurance did prejudice him before the jury, no matter how casually that fact appeared.
As I view this unfortunate affair, no circumstance impressed on the defendant any special care for Mrs. Smith or justifies the majority in denying the defendant the ordinary presumption in favor of a motorist. The duty of each to look out for the other was correlative. Each was equally capable of exercising care, and each was equally charged with common knowledge of the use of the highway (at the point of collision) by pedestrians and automobiles. The inattention of each was not successive, but was concurrent until too late to prevent the accident. Neither saw the other (in time) for the identical reason that neither looked for the other; and there was *609 no last clear chance in fact open to one, that was not open to the other. If defendant was negligent, Mrs. Smith was equally negligent, and her negligence would have prevented a recovery under the rule of contributory negligence as it has heretofore been pronounced in this jurisdiction.
Accordingly I dissent.