Green v. Los Angeles Terminal Railway Co.

I dissent. This case cannot be distinguished on the facts fromLee v. Market-Street Ry. Co., 135 Cal. 295. If the judgment in that case was founded upon a proper application of the doctrine of "last clear opportunity to avoid the injury," the judgment in this case should be affirmed. In my opinion delivered upon the former hearing, in commenting upon the facts quoted in the foregoing opinion of the court, I expressed the views to which I still adhere, as follows: —

"The rule of law applicable to the facts thus found is settled by a series of decisions of this court. In the most recent of these cases (Lee v. Market-Street Ry. Co., 135 Cal. 295), it is briefly stated as follows: ``One having an opportunity by the exercise of proper care to avoid injuring another, must do so, notwithstanding the latter has placed himself in a position of danger by his own negligence.' This is almost a literal quotation from Justice Van Fleet's opinion in Fox v. Oakland Cons. St. Ry.,118 Cal. 62,<sup>1</sup> where in support of the rule a number of cases are cited from our own reports, including Esrey v. Southern PacificCo., 103 Cal. 543, in which case the rule is thus stated: ``He who last has a clear opportunity of avoiding the accident by the exercise of proper care to avoid injuring another must do so.'

"In section 99 of Shearman and Redfield on Negligence it is said: ``It is now perfectly well settled that the plaintiff may recover damages for an injury caused by the defendant's negligence, notwithstanding the plaintiff's own negligence exposed him to the risk of injury, if such injury was moreimmediately caused by the defendant's omission after becoming aware of plaintiff's danger to use ordinary care for the purpose of avoiding injury to him.'

"This proposition is further amplified in the section cited, and the text is supported by a long array of decided cases. (See, also, Cooley on Torts, 674.)

"The essence of the doctrine seems to be, that contributory negligence of the plaintiff is not a defense in actions of this character, unless it is the proximate cause of the injury, and it is not such proximate cause when the defendant, after becoming aware of the danger plaintiff is in, or is evidently about to place himself in, could avert the consequence by the exercise of reasonable care. This sound and wholesome doctrine applies even in cases where no previous negligence on the part of the defendant has contributed to lull the plaintiff into a false security, and, a fortiori, it would have controlling force in a case like the present, where, as found by the court, the defendant was moving its train at an excessive and dangerous speed along a street of the city of Los Angeles without sounding bell or whistle and without the use of steam. According to the finding of the court, the engineer became aware of the danger into which plaintiff's wife was running, and might easily have avoided the collision by slackening the speed of the train, or by warning her of her danger by giving the signals which, under the law, it was his duty to give."

¹ 62 Am. St. Rep. 216.