Young v. Southern Pacific Co.

I concur in the judgment and in what is said in the main opinion on the question of contributory negligence, and the instructions given the jury thereon. I am not in entire accord with all that is said in the opinion in regard to the last clear chance doctrine, and believe that the instruction on that question was substantially correct and not rendered prejudicially misleading by the use of the words, "through fear, excitement, or loss of self-control." I am further of the opinion that there was sufficient evidence to sustain a verdict *Page 384 based on the last clear chance doctrine. To my mind, however, it cannot fairly be held that the evidence was such as torequire a verdict for plaintiff on that ground, or, in other words, that the evidence was such that defendants are liable under said doctrine as matter of law. This being so, a reversal cannot be avoided, for it is impossible to know upon what theory the verdict was rendered, or that the jury ever concluded that the facts existed which would have warranted a verdict under the last clear chance doctrine.