Opinion
No. 23597
Decided December 21, 1932.
Negligence — Last clear chance — Plaintiff, in perilous position, may recover damages, notwithstanding negligence, when — Defendant to exercise due care after actual knowledge of plaintiff's peril — Pleading — Insufficient to merely allege defendant saw or could have seen peril — Ordinary negligence or last chance may be pleaded, and recovery had, when — Charge to jury — Two-issue rule inapplicable to erroneous charge upon last chance, when.
1. Where a plaintiff, by his own fault, has caused himself to be placed in a perilous situation, he may recover under the rule of the "last clear chance," notwithstanding his negligence, if the defendant did not, after becoming aware of plaintiff's perilous situation, exercise ordinary care to avoid injuring him.
2. If recovery is predicated upon a state of facts invoking that rule, an instruction by the court, to the effect that if the plaintiff was guilty of such negligence his negligence would not preclude recovery, if the defendant failed to use ordinary care "after he saw or in the exercise of ordinary care should have seen" the plaintiff in a dangerous situation, is erroneous. The rule in Ohio requires the defendant to use due care after knowledge of plaintiff's peril. ( Erie Rd. Co. v. McCormick, 69 Ohio St. 45, approved and followed; the first proposition of the syllabus in Railroad Co. v. Kasser, 49 Ohio St. 230, disapproved).
3. A petition, setting forth a state of facts as a basis for the application of the doctrine of the last chance but which, in that connection, merely alleges that defendant saw or could have seen the plaintiff in a perilous situation, is insufficient to invoke the rule; such a pleading has no higher virtue than a charge of the court upon that subject, couched in similar language.
4. A plaintiff may, in his petition, plead a case of ordinary negligence and may also plead a state of facts invoking the last chance rule; and he may recover under whichever aspect the proof in the case assumes.
5. 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.
ERROR to the Court of Appeals of Cuyahoga county.
This is a suit for personal injuries brought by Joseph Brenden Masterson against the Cleveland Railway Company. Detroit avenue in the city of Cleveland is a street forty-two feet in width, running approximately east and west. Near its center the street railway company has two tracks; the northerly track being west bound, the southerly one east bound. About noon on September 3, 1927, Masterson, a youth of 18 years of age, was engaged in delivering meat orders in a Ford truck. On that day, while so engaged, he left his truck parked on the north side of the avenue, nearly opposite the point where he made his delivery. Leaving his car, he walked across to the south side of the avenue and made his delivery. He then attempted to recross the avenue in order to reach his truck parked on the north side. He testified that before recrossing there was a laundry truck standing at the south curb immediately to his left; that he saw an automobile approaching from the west and a street car approaching from the east on the north or west-bound track. He testified, "I figured I had plenty of time to get across from what I seen of the machine and the street car and everything." His testimony in chief as to walking across from the south to the north curb of the avenue is somewhat confusing with respect to the fact whether he looked in either direction after he left the curb; but, on cross-examination, he testified distinctly that he did not look either to the east or to the west:
"Q. After you left the curb did you again look to your right or to your left before you were struck by something? A. No."
The motorman testified that he was operating a train consisting of a motor and trailer, and going between eighteen and twenty miles an hour; that he saw a fast-moving automobile approaching from the west; that, when some forty feet from the plaintiff, seeing him poised on the south curb ready to step off, he immediately threw off the power, engaged the brake, and put on his reverse; that he saw the boy catapulted over the automobile, landing against the side and near the front end of the street car; and that the car had only traveled some sixty-five feet after the motorman applied his "emergencies" for stopping it.
The evidence discloses that the plaintiff, Masterson, was struck when he reached the south rail of the east-bound track by a Chevrolet automobile coming from the west, driven by one Stein, and that the plaintiff was hurled over the hood of Stein's automobile and onto the devil strip between the two tracks, with his left arm lying on the south rail of the west-bound track, where he was struck by the west-bound street car.
Four eyewitnesses testified in the case, two for the plaintiff and two for the defendant. The two eyewitnesses for the plaintiff testified that at the point of the accident they were also engaged in making a delivery, and had their truck parked at the south curb. Both said that the street car was approaching at the rate of five or six miles an hour, one of them testifying that, when Masterson was hurled upon the devil strip, the approaching street car was about two and one-half car lengths away from the point where he was struck by the automobile, and the other testifying that the car was much further away. When the street car had stopped, the plaintiff was found lying immediately in the rear of the front trucks of the motor car, with his injured arm over the south rail of the westbound track.
The two eyewitnesses offered by the defendant were a man and his wife driving close behind Stein's Chevrolet that struck the plaintiff. They both testified that the plaintiff started to run across the avenue from the south curb, and that, just as he reached a point near the center of the avenue, he was hurled into the air and landed on the devil strip, just a moment or so before the street car struck him.
In the trial court, Masterson recovered a judgment, which was later affirmed by the Court of Appeals. Certification was allowed by this court, and the cause is now here for review.
We are here concerned only with the issues made by the amended petition and the first defense of the answer thereto, consisting of a general denial; and, since the last chance doctrine is claimed to be invoked by the pleadings and evidence, only so much of the amended petition and the charge of the court as pertains to that doctrine will be alluded to.
After pleading the negligent and careless operation of the east-bound Chevrolet automobile driven by Stein, which hurled the plaintiff upon the street car track, the amended petition alleges that the motorman in charge of the street car "saw or by the exercise of ordinary care could have seen said plaintiff as he was walking across said street, " and that he had ample opportunity to avoid injuring him, but negligently failed to do so. The pleading further alleged that, after said defendant knew, or in the exercise of ordinary care should have known, "that the plaintiff was in said dangerous positions aforesaid, and was lying in a helpless condition partly on and partly along the defendant's said track, as hereinbefore described, said The Cleveland Street Railway Company carelessly and negligently failed to stop said street car or to slacken the speed thereof in season to have avoided running over the plaintiff's arm and injuring him, although in the exercise of ordinary care it could have done so."
Touching that feature of the case, the court charged the jury in its general charge that, if the plaintiff himself was guilty of negligence in running in front of the automobile, which hurled him upon the track, but his negligence ceased at that time, then "his negligence in running in front of the automobile would not preclude him from recovering damages of the defendant company if the motorman, after he saw or in the exercise of ordinary care should have seen the plaintiff upon the tracks, failed and neglected to use ordinary care to stop the street car in time to avoid striking the plaintiff. In other words, even if the plaintiff was negligent in running in front of the automobile, yet if his negligence stopped there and did not actively continue until the moment he was hit by the street car, the plaintiff would still be entitled to recover if the motorman after he saw or in the exercise of ordinary care should have seen the plaintiff in a dangerous and perilous position on the track, failed to use ordinary care to stop the street car in time to avoiding hitting the plaintiff."
Messrs. Squire, Sanders Dempsey, Mr. A.E. Powell, Mr. R.C. Green and Mr. H.E. Knachel, for plaintiff in error.
Messrs. Pfeiffer Fults and Mr. M.C. Harrison, for defendant in error.
Since the decision by this court of West, Recr., v. Gillette, Admr., 95 Ohio St. 305, 165 N.E. 521, some of our nisi prius courts have had difficulty in applying the "last clear chance" doctrine in the trial of personal injury cases. The records of this court disclose that the appellate courts have less difficulty, and generally adhere to the rule that, where the plaintiff and defendant both are negligent, and the former's negligence places him in a perilous situation from which he cannot escape, the plaintiff still may recover, even though he negligently placed himself in such situation, if the defendant did not exercise ordinary care after the discovery of his peril. Various cases involving the application of the "last clear chance" rule have, from time to time, appeared on the motion docket of this court, and in such cases this court has generally given its sanction to the rule stated in Erie Railroad Co. v. McCormick, Admx., 69 Ohio St. 45, 68 N.E. 571. A recent case knocking at our doors for certification was Ross v. Hocking Valley Ry. Co., reported by the Court of Appeals of the Second District in 40 Ohio App. 447, 178 N.E. 852. We do not generally allude to appellate opinions in our reported cases, but we shall refer to that case because it discloses the attitude of this court upon the subject in controversy. The fifth proposition of the syllabus in the Ross case reads: "Recovery is Permitted under last clear chance doctrine only where defendant failed to exercise ordinary care to avoid injury after becoming actually aware of injured person's peril." Citing Ohio and other authorities upon the subject, the appellate opinion definitely listed this state as one adhering to the rule permitting recovery "only where defendant fails to exercise ordinary care to avoid the injury after becoming actually aware of the peril of the injured person."
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; 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, 49 Ohio St. 230, [31 N.E. 282, 16 L.R.A., 674], distinguished." In the course of his opinion, Shauck, J., said, at page 55, that, by embodying into the instruction given the phrase, "if the engineer in charge of the train ought, by the exercise of ordinary care, to have seen the deceased in his perilous position," the court gave the jury an erroneous view of the law. An inspection of the Kassen case clearly discloses that propositions 1 and 3 of the syllabus of that case are inconsistent; but the court in the McCormick case distinguished the Kassen case, and, while adhering to the rule of actual discovery, applied the Kassen syllabus to a state of facts which disclosed that the railroad company had actual notice of Kassen's peril. It is apparent that in the McCormick case this court did not approve the first proposition of the syllabus in the Kassen case, supra; and, since that proposition is clearly inconsistent with the third, the first proposition therein is disapproved.
A later case involving the same subject, also adhering to the rule announced in the McCormick case, was that of Pennsylvania Co. v. Hart, 101 Ohio St. 196, 128 N.E. 142. There the plaintiff had properly pleaded the "last clear chance," but, there being no evidence to support a state of facts giving rise to the rule, the trial court struck the allegations from the amended pleading, but failed to withdraw inconsistent and erroneous special instructions pertaining to the last chance from the jury, two of which in effect charged that, even if the jury should find the plaintiff guilty of negligence, plaintiff still had a right to recovery if the engineer in charge of the train could have avoided the accident by the use of ordinary care. These requests, having been given to the jury at the instance of the plaintiff, and not having been withdrawn from their consideration, tended to mislead the jury. In the course of his opinion, the late Judge Robinson said at page 200: "For the defendant in error to have brought himself within the rule and to have entitled himself to a charge of the court upon the subject, the evidence must have tended to show that, while his negligence may have contributed toward getting him in the position of danger, all negligence on his part had ceased for a sufficient time prior to the accident to have enabled the plaintiff in error, after it knew of his situation of peril, to have avoided the accident." (Italics ours.) The case of Toledo, Columbus Ohio River Rd. Co. v. Miller, 108 Ohio St. 388, 140 N.E. 617, was decided upon grounds other than those embracing the doctrine of the last clear chance. The trial court had charged, in substance, that if the jury found that the plaintiff was negligent, he could recover if the engineer of the defendant's train "does see, or ought to be able to see, a person in danger." Upon that feature of the case, Day, J., said, at page 394: "At any rate, no matter what may have been in the mind of the trial court, we do not approve of the paragraph as a statement of the 'last clear chance,' " etc.
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 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., 97 Or. 264, 191 P. 333.
"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. Southern Pac. Co., 184 Cal. 662, 195 P. 408, 15 A. L. R., 117.
"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, 30 Okl., 28, 118 P. 350.
In the case of Miller v. Traction System, 44 S.D. 405, 406, 184 N.W. 233, the latter part of the syllabus reads: "A fair statement of 'last clear chance' theory is, that notwithstanding plaintiff's negligence put him in peril, yet if his danger is not perceived by defendant in time to exercise ordinary diligence such as will avoid injury, defendant is not liable; said theory being based on fact that defendant actually knew of the danger — not oil proposition that he could have discovered plaintiff's peril but for remissness oil his part; under which rule defendant is not liable because he ought to have known."
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, 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, 120 Ohio St. 197, 165 N.E. 737, this court unanimously approved the following statement in its syllabus: "The 'last clear chance' rule presupposes antecedent fault or negligence on the part of the plaintiff." And, citing authorities in its support, the Supreme Court of Colorado likewise held: "There is no place for an instruction on the last clear chance rule, where there is no contributory negligence on the part of the plaintiff." Campion v. Eakle, 79 Colo. 320, 246 P. 280, 47 A. L. R., 289. It is only in those cases of prior negligence on plaintiff's part, not actively continuing to the time of injury, that the last chance rule applies. If the rule should be so applied as to give rise to the duty of exercising the same care at all times, towards a plaintiff who has been negligent and one who has not been, then the negligent plaintiff has been placed on the same plane of advantage as the one who is free from negligence.
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, 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., 76 Ohio St. 234, 81 N.E. 326, 10 L.R.A. (N.S.), 421, 118 Am. St. Rep., 844. And in the Hart case, supra, we held that it was error to charge upon the rule of the last clear chance, if there was no evidence supporting a state of facts bringing the case within the rule. The amended petition does not state that the motorman saw the perilous situation of plaintiff in time to avoid injuring him. It alleges that he "saw or by the exercise of ordinary care could have seen." In other words, it is tantamount to an allegation that he either saw or could have seen the plaintiff in a situation of peril; and upon this phase of the case the allegation in the pleading has no higher virtue than the charge of the court couched in similar language. 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 need the pleader confess his own negligence in order to invoke the rule. The pleader is thereby safe-guarded by pleading and proof that fit whatever aspect the proof in the case assumes. But, adopting the caution expressed in the Drown case, supra, at page 249, the last clear chance rule, whether invoked by pleading or charged by the court, should be used with discrimination and not applied "as a hit or miss rule in every case involving negligence."
The defendant in error, plaintiff below, invokes the two issue rule to sustain his judgment under the principle announced in Sites v. Haverstick, 23 Ohio St. 626, and other cognate cases more recently decided by this court. The journal entry is unique and unusual, reciting that the jury "find for the plaintiff," not that it finds for him "on the issues joined." But, assuming that the verdict had been a general one, finding for the plaintiff on the issues joined, it is obvious that the two issue rule would not apply. The plaintiff was required to prove the negligence of the defendant before he could recover; and, since the jury's verdict finding the defendant to be negligent may have been based solely upon the court's erroneous instructions as to the degree of care required of the motorman under the last chance rule, it can well be assumed that such instructions provoked the verdict.
For the reason stated, the judgments of the courts below are reversed, and the cause will be remanded to 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.
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 Ohio Traction Co., 76 Ohio St. 234, 81 N.E. 326, 10 L.R.A. (N.S.), 421, 118 Am. St. Rep., 844. The instant case is exactly parallel in all material aspects to the Drown case, and the judgment in the instant case might well have been reversed upon the authority of that case, without further comment. Inasmuch as the last clear chance doctrine was not pleaded in the instant case, it would seem to be improper to discuss the elements of that doctrine, or to attempt to state those elements in a syllabus, but, in as much as that course has been followed in the case, those syllabi must be made the basis of the discussion in this dissent.
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, exercise ordinary care to avoid injuring him. This is the statement of the first syllabus, and the second syllabus cites Erie Railroad Co. v. McCormick, 69 Ohio St. 45, 68 N.E. 571, as authority for such declaration of the rule. I am of the opinion that the doctrine of last clear chance has been definitely declared in this state, but it cannot be said that it has become definitely settled. It seems to be a much mooted question among lawyers, among trial judges, among the different Courts of Appeals, and among the members of the Supreme Court. The rule was definitely declared in the parent case in Ohio on the subject of last clear chance, viz., Railroad Co. v. Kassen, 49 Ohio St. 230, 31 N.E. 282, 16 L.R.A., 674, in the first syllabus:
"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, in Davies 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 the Kassen 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., 69 Ohio St. 45, 68 N.E. 571, and asserts that upon the authority of the third syllabus in that case there can only be a recovery by a plaintiff where the defendant had actual knowledge of the plaintiff's peril. That case was not a last chance case, and the learned jurist who wrote the opinion in that case did not even claim that it was. That doctrine is nowhere discussed either in the syllabus or opinion. It is true that the third syllabus unexplained would seem to declare upon the doctrine, but a study of the facts of the case and the discussion of the law applied to those facts in the opinion clearly show that the case was decided upon an entirely different'principle. McCormick was an employee of the railroad. He was killed while serving as a track walker and by being caught upon a bridge and killed by a passing train. The case was decided upon the principle of assumption of risk. In that case there could only be a liability on the part of the company if the servants operating the train actually knew of McCormick's peril, and this is for the sole reason that the train was being operated upon the premises of the railway company at a place where there was no obligation on the part of the engineer to maintain a look-cut. If McCormick had been a pedestrian, or the driver of a vehicle at a railroad crossing where there was an obligation to maintain a lookout, the rule stated in the third syllabus could not have been applied. The McCormick case has never been regarded as a last clear chance case. It has never been cited on the subject of last clear chance by any text-writer, or in any legal cyclopedia or digest. It is stated in the opinion that McCormick's administrator could only recover upon the ground of willfulness or wantonness, and of course those grounds of recovery can only apply where the defendant had actual knowledge.
We need not conjecture as to the true significance of the McCormick 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 O. 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 case by this court. That court, speaking through Hoffheimer, J., declared that the rule was correctly stated in the Kassen case, 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., 75 Ohio St. 621, 80 N.E. 1127. We therefore have the opinion of the members of this court who concurred in the McCormick case that it did not apply, except in those eases where, independent of the last chance doctrine, it was necessary that the defendant have actual knowledge of plaintiff's peril.
If this evidence is not convincing, there is some further corroborating evidence. The case of the Cincinnati Traction Co. v. Jennings, Admx., 19 O. 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 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. 79 Ohio St. 435, 87 N.E. 1132. It cannot be said that these two cases were not fairly brought to the attention of the Supreme Court, because in each of those cases there had been a dissenting opinion in the Circuit Court, a circumstance which called for careful review in the Supreme Court. These cases have an added significance by reason of the concurrences. In the McCormick case, the concurrences were Shauck, Burket, Spear, Davis, Price and Crew. In the Hall case, the court at the time sitting in two divisions, the concurrences were Summers, Davis and Price. In the Jennings case, the court sitting en banc, the concurrences were Price, Shauck, Crew, Summers and Spear. It therefore appears that all of the judges who concurred in the McCormick case likewise concurred in the other cases, excepting only Burket, whose term had expired and who was succeeded by Summers. After the decision of the Kassen case, and prior to the decision of the McCormick case, the case of Lake Shore M. S. Rd. Co. v. Schade, Admr., 8 C. D., 316, was decided, which followed the syllabus in the Kassen case, and that decision was also affirmed without report in 57 Ohio St. 650, 50 N.E. 1133. The case of L. S. M. S. Rd. Co. v. Ehlert, Admr., 10 C. D., 443, also followed the rule declared in the Kassen case, on the authority of 57 Ohio St. 650, 50 N.E. 1133. The Ehlert case was also carried to the Supreme Court, where the Circuit Court was reversed, but the reversal was distinctly placed upon other grounds. Three other Circuit Court decisions followed the Kassen case, all of which preceded the McCormick case. Cincinnati Street Ry. Co. v. Jenkins, 11 C. D., 130; C., C., C. St. L. Ry. Co. v. Gahan, 14 C. D., 277; Lake Shore M. S. Ry. Co. v. Callahan, 15 C. D., 115.
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., 40 Ohio App. 447, 178 N.E. 852. It is true that that case did not follow the Kassen case. It is also true that this court overruled a motion to certify the record. We must, however, protest against any opinion of any member of this court declaring that the overruling of a motion to certify constitutes an adherence "to the principle announced by the appellate court, otherwise it would have admitted and reversed the case." The contrary of that declaration has been stated a score of times from the bench during the last few years, and in at least one opinion the bar has been advised that the overruling of a motion to certify does not amount to any declaration of legal principles. In the nature of things, it must be so, because no reason is ever announced for the overruling of a motion to certify. If, however, the pronouncement in the majority opinion relative to the case of Ross v. Hocking Valley Ry. Co. is to be accepted as a sound declaration, we call attention to the case of Taylor, Admr., v. Ohio Electric Ry. Co., 35 C. D., 553, in which case the Kassen case was definitely and specifically followed, and this court overruled a motion to certify the record on February 11, 1918.
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 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, 95 Ohio St. 305, 116 N.E. 521. It should only be necessary to say as to that authority that the majority opinion follows the Kassen case, and the requirement of actual knowledge of plaintiff's peril is only stated in the dissenting opinion. In any event, the Gillette case is not an authority, because there was no question in that case that defendant did discover plaintiff's peril, and it was unnecessary to inject into the case the additional rule that he would be liable if in the exercise of ordinary care he might have discovered such peril. The majority opinion, written by Judge Johnson, is valuable because at page 311 of 95 Ohio St., 116 N.E. 522, it discusses the doctrine of last chance as a "modification of the strict and rigid rule which denies to a plaintiff under all circumstances any recovery for the negligence of a defendant, where the plaintiff has himself contributed to the injury by his own negligence." Judge Johnson discusses several cases where it has been held that one who has the means of knowing, and who should in the exercise of ordinary care have discovered plaintiff's peril, becomes as responsible as though he had actual knowledge. He quotes with approval 2 Thompson on Negligence (2d Ed.), Section 1629, which draws a distinction between injuries to travelers at highway crossings and injuries to trespassers upon the tracks, where they have no right to be, and where the company is not bound to maintain a vigilant lookout. More important still, he quoted the Kassen case with approval. Finally, the doctrine of last clear chance was not involved in that case. The doctrine was involved in Pennsylvania Co. v. Hart, 101 Ohio St. 196, 128 N.E. 142, only to the extent of inquiring whether there was any evidence to support the claim of liability under that doctrine. There being no such evidence, there was no declaration in the syllabus. The opinion does not state the law. In Toledo, Columbus Ohio River Rd. Co. v. Miller, 108 Ohio St. 388, 140 N.E. 617, it is hardly correct to say that the judge who wrote that opinion disapproved the Kassen case. It is more accurate to say that he did not either approve or disapprove it. Again, the opinion does not state the law. In Drown v. Northern Ohio Traction Co., 76 Ohio St. 234, 81 N.E. 326, 10 L.R.A. (N.S.), 421, 118 Am. St. Rep., 844, the doctrine of last clear chance was directly involved, but what the court really decided was that the plaintiff could only recover upon the allegations of his petition and that he could recover upon negligence which warrants application of the rule of last chance without alleging it in his petition. Nevertheless Judge Davis, at page 248 of the opinion, in 76 Ohio State, 81 N.E. 328, again took occasion to discuss the distinction between those who are injured at highway crossings over railroads, and those who are upon the tracks at places where they have no legal right to be. And, again, in the opinion, Thompson on Negligence, which declares the rule of imputed knowledge, is quoted with approval. It is worthy of note that the Kassen case is also quoted with approval and that there is no mention anywhere in the opinion of the McCormick case. It cannot be said that the McCormick case was overlooked, because it is cited and quoted in the briefs of counsel for both plaintiff in error and defendant in error. Judge Davis did not think it had any application as a last chance case. In Schweinfurth, Admr., v. C., C., C. St. L. Ry. Co., 60 Ohio St. 215, the Kassen case is followed at page 223 of the opinion, 54 N.E. 89, and at page 222 of 60 Ohio State, 54 N.E. 91, Sherman Redfield on Negligence is quoted with approval, which states the rule substantially as stated in the Kassen case.
"It is not necessary that the defendant should actually know 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 of Robbins v. Pennsylvania Co., 245 F., 435, 441, where it is declared:
"The doctrine of last clear chance takes account of 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 peril of 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., 25 F.2d 933, decided May 8, 1928, by Judges Denison, Moorman and Knappen; Robinson v. Louisville Rd. Co., 112 F., 484, decided by Judges Lurton, Day and Wanty.
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 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. In Kansas City Southern Ry. v. Ellzey, 275 U.S. 236, at page 241, 48 S.Ct., 80, 81, 72 L.Ed., 259, it is said by Mr. Justice Stone, referring to the doctrine of last clear chance:
"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 of Davies 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 need the pleader confess his own negligence in order to invoke the rule."
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 than Cleveland Ry. Co. v. Wendt, 120 Ohio St. 197, 165 N.E. 737, and will make no further comment upon that authority than the part quoted in the majority opinion in this case:
"In Cleveland Ry. Co. v. Wendt, 120 Ohio St. 197, 165 N.E. 737, this court unanimously approved the following statement in its syllabus: 'The "last clear chance" rule presupposes antecedent fault or negligence on the part of the plaintiff.' And citing authorities in its support, the Supreme Court of Colorado likewise held: 'There is no place for an instruction on the last clear chance rule, where there is no contributory negligence on the part of the plaintiff.' Campion v. Eakle, 79 Colo. 320, 246 P. 280, 47 A. L. R., 289."
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.
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 of Knisely v. Community Traction Co., 125 Ohio St. 131, 180 N.E. 654, this court by unanimous concurrence declared that the two issue rule does apply to negligence and contributory negligence. It must therefore apply to negligence and last chance. The majority opinion is correct in saying that it cannot be relied upon in this case, because the two issue rule only applies where the verdict may rest upon either of two causes of action or defenses. In this case the verdict was for plaintiff, and the verdict could only be for plaintiff upon the jury finding both issues in plaintiff's favor.