Opinion
No. 6,922.
Submitted March 16, 1932.
Decided April 25, 1932.
Personal Injuries — Automobiles — Railroad Crossing Accident — Last Clear Chance Doctrine — Pleading and Proof — Trial — Instructions. Personal Injuries — Last Clear Chance Doctrine — Complaint — Necessary Allegations. 1. In order to state a cause of action in a personal injury action under the last clear chance doctrine, the complaint must allege the exposed condition of the injured person brought about by his own negligence, actual discovery of his perilous situation by defendant in time to avert injury to him, and defendant's failure thereafter to use ordinary care to do so. Same — Railroad Crossing Accident — Trespassers — Duty of Defendant. 2. Persons in charge of a train are not in duty bound to keep a lookout for trespassers upon the track between crossings or at other places where they have no right to be, their duty as to them going no further than to refrain from wilful or wanton injury, and to exercise reasonable care, after actual discovery of them in such a place, not to inflict injury upon them. Same — Complaint — Knowledge of Dangerous Condition on Part of Defendant — Effect of Alternative Allegations. 3. An allegation in a complaint seeking damages for personal injuries that defendant knew, or in the exercise of reasonable care should have known, a certain fact, charges no more than that the fact should have been known. Same — Railroads — Crossing Accident — Last Clear Chance Doctrine — When Defendant Liable in Damages. 4. As distinguished from cases in which trespassers upon railroad tracks are injured (see par. 2, above), where a collision occurs at a crossing, in approaching which train operatives must keep a vigilant lookout — which includes the duty to see that which is in plain sight — negligence in that behalf or failure to use reasonable care to check or stop the train will render defendant company liable to a negligent traveler, under the last clear chance doctrine, if, aware of his danger, it had a later opportunity to avert the accident than did he. Same — Railroads — Crossing Accident — Complaint — Last Clear Chance Doctrine — Alternative Allegation of Knowledge of Dangerous Situation of Plaintiff — When Permissible. 5. While, in a personal injury action by a trespasser upon a railroad track in which plaintiff relies upon the last clear chance doctrine, he must allege that the trainmen actually saw him in a place of danger, where the accident occurred at a crossing, the allegation may be made in the alternative, i.e., that they saw or would have seen him if they had exercised ordinary care. Same — Automobiles — Railroad Crossing Accident — Complaint — Allegation of Plaintiff's Negligence — Sufficiency. 6. As against a general demurrer, complaint in a personal injury action, based on the last clear chance doctrine, showing that plaintiff's truck stalled on a railroad crossing without his fault, and that his perilous situation was brought about by his remaining in the truck in an endeavor to start it, held sufficient to meet the rule that plaintiff in such a case must allege his own negligence in the premises. Same — Question Whether Locomotive Engineer Saw Plaintiff in Perilous Situation Provable by Circumstantial Evidence. 7. Whether the engineer of a locomotive which collided with plaintiff's truck, not equipped with doors, standing on the crossing at right angles with the track, saw the plaintiff, kneeling between the seat and dashboard checking the coils, in his perilous position in time to have stopped his train and avoided the accident, a matter provable by circumstantial evidence, was for the jury to determine. Same — Railroad Crossing — Automobiles — Last Clear Chance Doctrine — When Plaintiff's Negligence Remote and That of Defendant Proximate Cause of Accident. 8. While it is the rule that where an injury is the result of plaintiff's negligence concurring with that of defendant up to the time of the injury, the last clear chance doctrine is inapplicable, where the driver of a truck stalled on a railway crossing was so absorbed in his efforts to extricate himself from his dangerous position until too late to escape injury, the engineer's negligence in failing to stop after seeing him, under that doctrine became the sole proximate cause of the injury and the negligence of plaintiff a remote cause thereof. Trial — Instructions to be Viewed as a Whole — Disregard of Instruction by Jury — Verdict Against Law — When Contention Without Merit. 9. A verdict in favor of plaintiff in a personal injury action may not be said to have been against the law on the ground that the jury disregarded an instruction on the subject of plaintiff's negligence which would have entitled defendant to a verdict, where other instructions on the same subject were given in connection with various phases of the case, so that the jury in reading the instructions as a whole, as they must be read, could apply them, with their qualifications, to the evidence on the point in question.
Appeal from District Court, Silver Bow County; Frank L. Riley, Judge.
Mr. John E. Corette and Mr. Francis P. Kelly, for Appellant, submitted a brief; Mr. Corette argued the cause orally.
Mr. J.J. McCaffery and Mr. A.G. Shone, for Respondent, submitted a brief; Mr. Shone argued the cause orally.
The complaint is insufficient to state a cause of action under the last clear chance doctrine. There is no allegation in the complaint that the exposed condition of the plaintiff was brought about by his own negligence. In fact, he attempts to absolve himself from negligence by alleging that he "carefully looked to the right and to the left before entering the Williamsburg crossing with his truck," etc. In the absence of such an allegation the complaint is insufficient to state a cause of action under the last clear chance doctrine. ( Anderson v. Missoula Street Ry. Co., 54 Mont. 83, 167 P. 841.)
The allegations of plaintiff's contributory negligence set forth in defendant's affirmative defense cannot be relied on by plaintiff to cure the defect in his complaint in this regard, for the reason that in his reply plaintiff denies the affirmative allegations set forth in defendant's answer. The rule in this connection is that a plaintiff may not rely upon the pleading of his adversary where he has denied in his reply the allegations which he later relies on for assistance. ( Mantle v. White, 47 Mont. 234, 132 P. 22; Greenburg v. German-American Ins. Co., 83 Or. 662, 160 P. 536, 163 P. 820; Cohn-Baer-Myers Aronson Co. v. Realty Transfer Co., 117 App. Div. 215, 102 N.Y. Supp. 122; Sharkey Co. v. City of Portland, 58 Or. 353, 106 P. 331, 114 P. 933; Donaghy v. Oregon-Washington R. Nav. Co., 133 Or. 663, 288 P. 1003, 291 P. 1017; Sterling v. Sterling, 43 Or. 200, 72 P. 741; Mosness v. German-American Ins. Co., 50 Minn. 341, 52 N.W. 932; 49 Cor. Jur. 864, note 37; 1 Bancroft's Code Pleading, sec. 738.)
In attempting to allege discovery of plaintiff in a position of peril by the defendant's servants, the complaint charges: "That while plaintiff was so stalled on the said crossing the said defendant, as plaintiff is informed and believes, acting through certain servants, to wit: its engineer and fireman, observed and saw plaintiff, or had they or either of them exercised ordinary care, they would have seen plaintiff in his said truck in the said position of grave danger," etc. Under the rule as laid down by this court such an allegation is insufficient to bring the case within the doctrine of the last clear chance. Actual discovery must be alleged directly and discovery cannot be alleged in the alternative.
There is nothing in any of the Montana cases involving the last clear chance doctrine which would justify the conclusion that there is any distinction between trespassers and travelers at crossings, in so far as the last clear chance doctrine is concerned. All of the following cases hold that the doctrine of actually discovered peril applies to crossing cases on public highways: Wheelock v. Clay, 13 F.2d 972; Pennsylvania Ry. Co. v. Swartzel, 17 F.2d 869; Haber v. Pacific Electric Ry. Co., 78 Cal.App. 617, 248 P. 741; Emmons v. Southern P. Co., 97 Or. 263, 191 P. 333; Atchison, T. S.F.R. Co. v. Bratcher, 99 Okla. 74, 225 P. 941; Heldt v. Thompson, 86 Ind. App. 270, 157 N.E. 60; McFarland v. Chicago, M. St. P. Ry. Co., 51 S.D. 85, 212 N.W. 493; Todd v. Cincinnati, N.O. T.R. Co., 135 Tenn. 92, L.R.A. 1916E, 555, and note 185 S.W. 62. For this court to hold that the allegation of discovery contained in the complaint in this case is a sufficient pleading under the last clear chance doctrine, it must entirely disregard all of the above cases and directly overrule its former holdings in the following cases: Dahmer v. Northern Pacific R. Co., 48 Mont. 152, 136 P. 1059, 142 P. 209; Anderson v. Missoula Street R. Co., 54 Mont. 83, 167 P. 841; McIntyre v. Northern Pacific R. Co., 56 Mont. 43, 180 P. 971; Doichinoff v. Chicago, M. St. P.R. Co., 51 Mont. 582, 154 P. 924; Stricklin v. Chicago, M. St. P.R. Co., 59 Mont. 367, 197 P. 839.
The negligence of plaintiff was contemporaneous, concurrent, continuing and contributory with the negligence, if any, of defendant. The law as to continuing and concurrent negligence of plaintiff in an action based on the last clear chance doctrine is set forth in 3 Elliott on Railroads, third edition, page 584, as follows: "* * * The better considered cases, however, take the view that the doctrine of last clear chance is inapplicable, at least inapplicable so as to sustain a recovery by plaintiff — if the negligence of the plaintiff or deceased must be regarded as continuing or concurrent with the negligence of defendant until the instant of the impact. Recent well considered cases, as well as most of the earlier decisions, to which attention has already been called, sustain this statement." (See, also, Melzner v. Northern Pacific Ry. Co., 46 Mont. 162, 127 P. 146; Mihelich v. Butte Electric Ry. Co., 85 Mont. 604, 281 P. 540; Moran v. Smith, 114 Me. 55, 95 A. 272; Denver City Tramway Co. v. Cobb, 164 Fed. 41, 90 C.C.A. 459; Rowe v. Southern California Ry. Co., 4 Cal.App. 1, 87 P. 220; Labelle v. Central Vermont R. Co., 87 Vt. 87, 88 A. 517; French v. Grand Trunk R. Co., 76 Vt. 441, 58 A. 722; Giannini v. Southern Pacific Co., 98 Cal.App. 126, 276 P. 618; Miller v. Central Vermont R. Co., 95 Vt. 69, 113 A. 524; Johnson v. Texas P. Ry. Co., 16 La. App. 464, 133 So. 517, 135 So. 114; Emmons v. Southern Pacific Co., 97 Or. 263, 191 P. 333.)
Numerous decisions of this court, the most recent of which is Rau v. Northern Pacific Ry. Co., 87 Mont. 521, 289 P. 580, have definitely established the rule that a person approaching a railway crossing must take all reasonable precaution to assure himself, by actual observation, that there is no danger from an approaching train; that he must not only look and listen but must exercise care to make the act of looking and listening reasonably effective, and that if he proceeds without this precaution and is injured he is guilty of contributory negligence. Certainly there must be an equal or even greater duty upon the part of one stalled on a crossing, and who must realize that if a train should come while he is stalled on the crossing he will be injured or perhaps killed, to make a vigilant use of his senses to discover the approach of an oncoming train.
It is negligence for a person to be upon the track of a railroad without keeping watch both ways for trains. ( Thompson v. Morgan, 167 La. 335, 119 So. 69; Vappi v. Morgan's Louisiana T.R. S. Co., 155 La. 183, 99 So. 31.) The presence of a railroad track is of itself a warning of danger. ( Roberts v. Chicago, M. St. P.R. Co., 67 Mont. 472, 216 P. 332; West v. Davis, 71 Mont. 31, 227 P. 41; Meehan v. Great Northern R. Co., 43 Mont. 72, 114 P. 781.) We do not contend that a traveler, upon his automobile stalling upon a crossing, is required to immediately abandon the same and retreat to a place of safety, but we do earnestly contend that he is not justified in continuing his efforts to save the car, in utter disregard of his own life. We can imagine no clearer case of continuing contributory negligence, nor a more flagrant disregard of one's own life, than that presented by plaintiff's action in remaining down on the floor of the truck while it was stalled on a main track of a railroad in constant use, for the length of time he did, and hidden from the view of the engineer, as he was, without making the slightest effort to observe the approaching train. Certainly he was not justified in endangering his life for such a length of time in order to save a Ford truck, and we contend that, if he were justified in making a reasonable effort to remove the truck from the crossing, such action was, at all times, subject to the greater duty to prevent injury to his person.
The verdict of the jury is not supported by the evidence, and such verdict is against the law as set forth in the instructions given by the court.
The defendant, the Oregon Short Line Railroad Company, a corporation, has appealed from a judgment against it and in favor of the plaintiff, William Pollard, in a personal injury action.
The complaint originally contained two counts; the first based on primary negligence; the second grounded on the last clear chance doctrine. The defendant interposed a general demurrer to each count, and, on the overruling thereof, answered, joining issue as to the allegations of the complaint, and pleading contributory negligence as a special defense. Plaintiff replied, and the cause came on regularly for trial to a jury; whereupon defendant objected to the introduction of any evidence on the ground that the complaint does not state facts sufficient to constitute a cause of action, which objection was overruled.
At the close of plaintiff's case defendant moved for a non-suit; whereupon plaintiff withdrew the first count of the complaint, and stood upon the theory of the last clear chance. The motion was overruled, and, at the close of the taking of testimony, defendant moved for a directed verdict, which motion was denied. The jury was instructed and later returned a verdict for plaintiff, awarding him damages in the sum of $2,900, on which judgment was entered. Thereafter plaintiff moved for a new trial, which motion was overruled.
The defendant has made numerous assignments of error which, jointly and severally, raise the questions hereinafter discussed.
1. The first question for consideration is that of the sufficiency of the complaint, which contains the following allegations: That, "in clear daylight," the plaintiff drove a Ford delivery truck downgrade on a highway to a grade crossing, and, in doing so, "carefully looked to the right and to the left," and had ample time to make a safe crossing as no train was in sight, but that, without fault on his part, the truck stalled on the track in such manner that he was unable to move it either forward or backward.
That the defendant, "acting through * * * its engineer and fireman, observed and saw plaintiff, or had they or either of them exercised ordinary care, they would have seen plaintiff in his truck in said position of danger * * * in ample time to have stopped the train," but negligently drove the train "into and upon the plaintiff so stalled in his truck * * * while he was attempting to remove it from the crossing in an effort to avoid injury to defendant's servants and passengers."
It is then alleged that "after the said servants * * * observed the plaintiff's position * * * there being great danger, there was ample time" to have stopped the train and thereby avoided the collision, as the track was clear and unobstructed for more than 1,000 yards between "the point where the said servants * * * first observed plaintiff's condition" and the crossing where he was struck and injured.
Two attacks are launched against the complaint, first, that it alleges observation, or the duty to observe plaintiff in a place of peril in the alternative; and, second, that the complaint does not allege that plaintiff was initially negligent.
The rule is firmly established in this jurisdiction that, in [1] order to state a cause of action under the last clear chance doctrine, the pleader must disclose (1) the exposed condition brought about by the negligence of the plaintiff, or the injured party; (2) the actual discovery by the defendant of the perilous situation of the person or property in time to avert collision; and (3) the failure thereafter of the defendant to use ordinary care to avert the injury.
This rule is applied rigorously in all cases wherein the plaintiff was injured while trespassing on a railroad track and the reason for so doing is plain. In order to state a cause of action for damages for personal injuries, the complaint must always disclose a legal duty owing from the defendant to the injured party, and a negligent breach thereof, resultant damages, and that the breach of the duty was the proximate cause of the injury. ( Griffin v. Chicago, M. St. P.R. Co., 67 Mont. 386, 216 P. 765; Ecclestine v. Great Northern Ry. Co., 58 Mont. 470, 194 P. 143.)
The law does not impose upon those in charge of a train the [2] duty of keeping a lookout for trespassers upon the track between crossings, or at other places where they have no right to be; the only duty owing to such persons is to refrain from wilful or wanton injury, and to exercise reasonable care, after actual discovery of them in such a place, not to inflict injury upon them. ( Egan v. Montana Cent. Ry. Co., 24 Mont. 569, 63 P. 831; Stricklin v. Chicago, M. St. P.R. Co., 59 Mont. 367, 197 P. 839.)
The allegation that a fact is known, or in the exercise of [3] reasonable care should have been known, is, like a chain, no stronger than its weakest link and, at best, charges that the fact should have been known ( Dickason v. Dickason, 84 Mont. 52, 274 P. 145); consequently, in trespass cases, an allegation in the alternative does not disclose a legal duty, for, as the trainmen owed no duty to keep a lookout, they were not in duty bound to know that which they would have known had they kept such a lookout.
These are the fundamental principles underlying the declaration that, in order to invoke the "last clear chance doctrine," the complaint must allege actual discovery. (See Melzner v. Northern P. Ry. Co., 46 Mont. 162, 127 P. 146; Haddox v. Northern P. Ry. Co., 46 Mont. 185, 127 P. 152; Dahmer v. Northern P. Ry. Co., 48 Mont. 152, 136 P. 1059, 1062, 142 P. 209; McIntyre v. Northern P. Ry. Co., 56 Mont. 43, 180 P. 971; Stricklin v. Chicago, M. St. P.R. Co., supra.)
While many courts have assumed that the foregoing rules apply [4] in all cases wherein the doctrine is invoked and, therefore, require the allegation and proof of "actual discovery" in crossing cases ( Wheelock v. Clay, (C.C.A.) 13 F.2d 972; Pennsylvania R. Co. v. Swartzel, (C.C.A.) 17 F.2d 869; Haber v. Pacific Electric Ry. Co., 78 Cal.App. 617, 248 P. 741; Emmons v. Southern P. Co., 97 Or. 263, 191 P. 333; Atchison etc. Ry. Co. v. Bratcher, 99 Okla. 74, 225 P. 941; McFarland v. Chicago, M. St. P. Ry. Co., 51 S.D. 85, 212 N.W. 493), "according to the better view with reference to crossings — as distinguished from injuries to trespassers and bare licensees upon railway tracks at places where they have no right to be — the servants of the railway company are bound to keep a vigilant lookout in front of the advancing engines or trains, to the end of discovering persons exposed to danger on the 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 trains, it could avoid injuring them." (Thompson's Commentaries on the Law of Negligence, sec. 1629; 2 Shearman Redfield on Negligence, 5th ed., 783.) The duty to keep a lookout includes the duty to see that which is in plain sight. ( Southern Ry. Co. v. Bailey, 110 Va. 833, 27 L.R.A. (n.s.) 379, 67 S.E. 365; Roberts v. Chicago, M. St. P. Ry. Co., 67 Mont. 472, 216 P. 332; Johnson v. Herring, 89 Mont. 156, 295 P. 1100.)
In this class of cases, as distinguished from trespass cases, [5] "the sound principle then is that the defense of contributory negligence is not available where the defendant was guilty of a negligent act or omission subsequently to the time when he ought to have known that the negligence of the plaintiff or the person injured had created a position of peril" (1 Thompson's Com. on the Law of Negligence, 224, and cases cited); "a negligent defendant will be held liable to a negligent plaintiff if the defendant, aware of plaintiff's peril or unaware of it only through carelessness, had in fact a later opportunity than the plaintiff to avert an accident." ( Kansas City Southern Ry. Co. v. Ellzey, 275 U.S. 236, 72 L.Ed. 259, 48 Sup. Ct. Rep. 80, 81.)
This last declaration is in harmony with what is said in Neary v. Northern P. Ry. Co., 37 Mont. 461, 19 L.R.A. (n.s.) 446, 97 P. 944, and in Doichinoff v. Chicago, M. St. P. Ry. Co., 51 Mont. 582, 154 P. 924, as the latter opinion is explained in Stricklin v. Chicago, M. St. P. Ry. Co., supra.
On this class of cases, therefore, the allegation and proof in the alternative, as here, is sufficient. ( Norfolk Southern R. Co. v. Crocker, 117 Va. 327, 84 S.E. 681; Nicol v. Oregon-Washington Ry. Nav. Co., 71 Wn. 409, 43 L.R.A. (n.s.) 174, 128 P. 628; Mosso v. E.H. Stanton Co., 75 Wn. 220, L.R.A. 1916A, 943, 134 P. 941; Teakle v. San Pedro, L.A. S.L. Ry. Co., 32 Utah, 276, 10 L.R.A. (n.s.) 486, 90 P. 402; Knutson v. Oregon Short Line R. Co., (Utah, 1931) 2 P.2d 102; Bogan v. Carolina Cent. R. Co., 129 N.C. 154, 39 S.E. 808, and note 55 L.R.A. 418.)
Regarding the second attack upon the complaint, it is urged [6] that, as the complaint negatives negligence on the part of the plaintiff in approaching the track, and alleges that the truck stalled without his fault, it fails to show that the exposed condition of plaintiff was brought about by his own negligence, as required by the above rule regarding the showing necessary to bring a case within the last clear chance doctrine.
Here the negligence shown is not in the particulars mentioned, but consists in plaintiff's remaining in the truck after it stalled, in an effort to get it off the track. This is comparable to the situation upon which comment is made in the Neary Case, supra, wherein the court found negligence in the deceased's absorption in his work to the extent of rendering him oblivious of the approach of the dangerous instrumentality.
In the Dahmer opinion, supra, the court applied the doctrine, although the plaintiff's peril was not brought about by his initial negligence, declaring "a person, however, may be put in a position of peril by circumstances for which he is not responsible, and for this reason is not chargeable with antecedent negligence, * * * yet, if those in charge of a train discover his situation * * * while it is still within their power, by the exercise of ordinary care, to stop the train, they must do so, under the penalty of making themselves and their employer liable."
The complaint before us is sufficient to withstand the general demurrer interposed.
2. The next contention, under various assignments of error, is that the evidence is insufficient to justify the verdict and judgment.
It is here argued that this action is not concerned with the [7] truck, and that, even though the circumstances might warrant a finding that the engineer saw the truck, there is no evidence that he saw the plaintiff; that plaintiff failed to prove that he was in a position of peril at any time when, by the exercise of care, the engineer could have avoided the collision, as, up to the moment before the collision, plaintiff was hidden from view; that he voluntarily placed himself in a position where he could not be seen.
Plaintiff's case was made by proof of the following facts and circumstances: The accident happened at the Williamsburg crossing southwest of Butte, to the west of which there is a clear view of the track for approximately 800 yards, or about half a mile, and, conversely, the engineer had a clear view of the crossing while driving his engine that distance; he was traveling at from 27 to 30 miles an hour, and could stop his train within 450 to 475 feet. Thus it is demonstrated that the engineer, who was keeping a constant lookout, should have seen the truck at the crossing while at a distance of approximately five times that in which he could have stopped his train, and could have averted the accident after he had proceeded four-fifths of the distance between his first view of the crossing and the point of collision. He applied his brakes when within 80 feet of the truck, struck it, and stopped the train some 400 feet beyond the crossing.
The plaintiff was driving a Ford delivery truck with a cab at the front, but without doors; as he approached the crossing he looked to left and right; there was no train in sight. As his truck got upon the track his engine died and the truck stalled; he was unable to move it backward or forward; he looked up and down the track and still there was no train in sight. Plaintiff thought the trouble was in the "coils" as he had had similar trouble before; he decided that he must get the truck from the track since it might wreck any train that might pass; he went down on one knee with his head under the dashboard and began checking the coils, thereafter paying no attention to anything but the work in hand. He heard no whistle, no bell, but suddenly he heard "an awful roar," looked up and saw the train almost upon him; he attempted to jump but was too late; he was thrown from the track with the truck and received serious injuries. Plaintiff estimated the time he was working on the coils before the accident as "about a minute." There is nothing in the record to warrant the assertion that the engineer, seeing the truck, could not see the plaintiff in it.
In all probability many of the jurors were familiar with the construction of an open Ford truck, and knew of the limited amount of space between the driver's seat and the dashboard and that under the dashboard. In the absence of proof to the contrary, the jury was justified in assuming that, with the truck standing across and at right angles to the track and having no door, at 500 feet or more the engineer, seeing the truck, could and did see the plaintiff kneeling between the seat and the dashboard. This fact was provable by circumstantial evidence. ( Doichinoff v. Chicago, N. St. Paul Ry. Co., supra; Fisher v. Butte Electric Ry. Co., 72 Mont. 594, 235 P. 330; Westerdale v. Northern P. Ry. Co., 84 Mont. 1, 273 P. 1051.)
Clearly, the plaintiff was in a place of peril, and under circumstances invoking the last clear chance doctrine under the authority of the Neary and Doichinoff decisions, above, and it is manifest that, had the engineer set his brakes at any time up until he reached a point less than 500 feet west of the crossing, he could have averted the accident and injury.
It is to be noted that the engineer did not say that he saw the truck but did not know that it was occupied. Had he done so and offered the excuse that he acted on the assumption that it would be less expensive to the defendant to wreck an old truck than to "dynamite" his train, a different question would be here presented. His explanation is that he saw the plaintiff driving his truck and approaching the crossing simultaneously with the approach of the train and saw that plaintiff was not going to stop too late to stop the train. His story is supported by the testimony of the fireman who sat at the opposite window looking ahead and who said that he saw nothing on the crossing. However, this testimony but created a conflict in the evidence; the jurors were at liberty to believe the engineer when he said he was keeping a vigilant lookout and did see the plaintiff in his truck, and to disregard his testimony as to where the truck was, in favor of plaintiff's statement that the truck was stalled upon the track before the train rounded the curve half a mile away; as there is abundant testimony to support its implied finding, the verdict and judgment cannot be disturbed on the ground here urged.
3. It is next contended that the judgment cannot stand for the [8] reason that the negligence of the plaintiff was contemporaneous, concurrent, continuing, and contributory.
It is true that this court has recognized the rule that, where an accident is the result of negligence of the plaintiff concurring with the primary negligence of the defendant up to and producing the injury, there is no room for the application of the last clear chance doctrine ( Melzner v. Northern P. Ry. Co., supra; Mihelich v. Butte Electric R. Co., 85 Mont. 604, 281 P. 540), but the doctrine presupposes negligence on the part of the plaintiff and attaches in spite of such negligence when there is a break in the sequence of events. Here, as in the Neary Case, the plaintiff remained passive and oblivious of his danger, because of his preoccupation in the work at hand, and thereafter, according to the implied findings of the jury, the engineer discovered his perilous situation in time to have avoided the accident, but did not employ the means at his command to avoid it, and "the defendant's last act of negligence becomes the sole proximate cause of the injury, while his initial negligence and the primary negligence of the defendant become but remote causes thereof." ( Neary v. Northern P. Ry. Co., supra.)
In Mosso v. E.H. Stanton Co., supra, it is said that, on discovery of plaintiff's position of peril, a new duty on the part of the person in charge of the instrumentality arises. It is only after this new duty has arisen and is breached that concurrent negligence on the part of plaintiff makes the doctrine under consideration inapplicable; a new negligence on the part of the plaintiff; a showing that, up to the moment of collision, he was "actively at fault." ( Holmes v. South P. Coast Ry. Co., 97 Cal. 161, 169, 31 P. 834.)
Many cases, on the fact conditions shown, indicate or declare that the continuing contributory negligence of the injured party takes the case out of the rule of the last clear chance, unless it is shown that for some reason he is in a position wherein it is physically impossible for him to extricate himself; but this is not in accord with the declarations of this court in the Neary and Doichinoff Cases, nor with holdings in other jurisdictions wherein the showing is that the injured party might have extricated himself but did not do so, it being held that the sufficiency of the reason shown is for the jury. ( Hillebrant v. Manz, 71 Wn. 250, 128 P. 892; Bruggeman v. Illinois Cent. R. Co., 147 Iowa, 187, Ann. Cas. 1912B, 876, 123 N.W. 1007; Miller v. Central Vermont Ry. Co., 95 Vt. 69, 113 A. 524; Mosso v. E.H. Stanton Co., supra.)
The evidence is sufficient, if believed by the jury, to warrant the implied finding that the plaintiff was so absorbed in his efforts to get the truck off the track for the protection both of the truck and the rolling stock and passengers of the defendant as to bring the case within the rule announced in the Neary Case, and thus render the doctrine of the last clear chance applicable.
4. It is next asserted that the court erred in giving its instruction numbered 13, which reads as follows: "If you find from a preponderance of the evidence * * * that the engineer in charge of defendant's train, at the time mentioned * * * was in a position where he could have seen plaintiff's truck stalled upon the railway crossing, if you find that it was so stalled, this is a circumstance you may take into consideration in determining whether or not the servant of the defendant, its engineer, saw the plaintiff in time to have averted the injuries complained of by the plaintiff. The law presumes that a person looking down the track in the position of the engineer, if you find he was looking down the track, should have seen what was in plain sight to be seen."
In view of what has been heretofore said, and the fact that actual discovery may be proved by circumstantial evidence, the giving of the instruction did not constitute error.
5. Finally it is contended that the verdict is against law in [9] that the jury disregarded instruction numbered 14, which is that "if you find from the evidence that the plaintiff, had he looked and listened, ought to have heard the warnings and signals of the train, if any were given, and that if he had exercised reasonable care he would have heard said warnings and signals, if any were given, and would have seen the locomotive and heard the noise created by the rapidly moving train, in time to avoid the accident, then and in that event your verdict should be for the defendant."
Standing alone, this instruction would justify the contention of defendant, but the instructions must be read as a whole. The court in its instructions covered every phase of the case, and this instruction was given in connection with those on contributory negligence as a bar to recovery, ordinarily, and concurrent continuing negligence as rendering the last clear chance doctrine inapplicable. However, the court fully instructed the jury on that doctrine, and, when read as a whole with their qualifications and applied to the evidence which the jury might or might not believe, it cannot be said that the law, as a whole, as given to the jury, was violated by the verdict rendered.
No reversible error appearing in the record, the judgment is affirmed.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES GALEN, FORD and ANGSTMAN concur.