I dissent.
I concur in what is said in the opinion on the question of the negligence of the deceased, and I have no objection to the statements as to the law in regard to the last clear chance doctrine. But it does seem to me, after a full consideration of the record, that the evidence was such as to sufficiently support the conclusion of the jury and trial judge that facts existed which make the Railroad Company liable under the last clear chance doctrine, and that the reversal of this judgment is in violation of our well-settled rule that this court will not interfere with the conclusion of the jury and trial court on questions of fact where the evidence is substantially conflicting.
There was much testimony as to the giving of the warning signal, and so far as its character is concerned there is no *Page 330 conflict in the evidence. The short, sharp blasts of the locomotive apparently attracted the attention of and alarmed the whole neighborhood. But on the question of the distance of the locomotive from the crossing at the time the first of these blasts was sounded, as well as on the question of the distance of Coffey therefrom, there is much conflict in the evidence, some of the testimony being substantially to the effect that the locomotive was within two hundred feet and Coffey just beginning to cross, while other testimony was to the effect that he was then within about twenty feet of the track, the fireman's testimony placing him still farther away. Of course, with the testimony conflicting on these points, the jury were not bound to accept as correct the evidence of the engineer and fireman that the warning was given as much as eight hundred feet west of R Street. They might fairly conclude, in accord with the evidence to that effect, that the train was then only two hundred feet from the crossing, and that Coffey, at least so far as the heads of his horses were concerned, was already practically within the danger zone. According to the evidence of the fireman, Coffey showed no indication of knowledge of the approaching train until the front wheel of the wagon was about to go over the north rail, but sat with his head down, jogging along at the same gait, until that time. This situation is absolutely inconsistent with any theory that the danger blasts were sounded at as great a distance from R Street as eight hundred feet, for it is incredible that Coffey would not have heard them, and certainly the jury may fairly have concluded that he did hear them when they were blown, and as soon as he could get at it adopted the only course apparent to him of avoiding a collision. That Coffey was not asleep is evidenced by the testimony that he had driven out around the projecting car on Track No. 5. It is undisputed that the locomotive struck the rear wheel of the wagon, which was some twenty feet from the heads of the horses. The jury may well have concluded that there was no increase in Coffey's rate of speed at any time before being struck, for although at the very last he did his best to urge his team forward, there was testimony that at least one of the led horses at the rear held back, and in the nature of things it would take a moment or two for the horses at the rear to respond to the sudden start of the horses in front, even if they did not hold back because *Page 331 frightened by the train, which was then so near at hand. At that rate he would have traveled in five seconds only about twenty-two feet. I think it is apparent from the record that there is sufficient support for a conclusion by the jury that the danger blasts were not commenced until the train was within two hundred feet of the crossing, and that at that time Coffey was already in a position of danger. Indeed, it is my opinion, after an exhaustive consideration of the record, that the substantial weight of the evidence is to this effect.
If this was apparent to the fireman, or should have been apparent to him as a reasonable man with the knowledge he actually had, it was incumbent on him to do what he could then reasonably do to avoid the threatened injury. For the consequences of any neglect on his part in this regard, defendant Railroad Company would be liable under the last clear chance doctrine. It must be accepted as sufficiently established by the evidence of both fireman and engineer that the fireman did not call upon the engineer to stop the train or reduce the speed immediately upon the giving of the danger blasts, and that there was no application of the emergency brake for some appreciable time thereafter. It is obvious that the difference of even a second in the application of the brake would have so reduced the speed as to have avoided a collision with any part of the wagon.
In view of the testimony of the fireman that Coffey was constantly under his observation except for a second or two, when his view was obstructed by cars, from a point where he was one hundred feet from the track until the time of the collision, I do not see how it can fairly be held that there was no sufficient support for a conclusion by the jury that at the time the danger blasts were commenced the fireman had actual knowledge of facts from which he should have concluded, as a reasonable man, that Coffey was already, owing to his ignorance of the approach of the train, in a position of danger; that even if his advancing horses' heads were not even then within the space that would be covered by the overhang of the locomotive as it passed, they would inevitably be within such reach in a second or two at most; that the situation was such that Coffey, for some reason, had been without knowledge of the approach of the train, and that the time was so short that he could not be brought *Page 332 to a realization of his dangerous position in time to enable him to stop his team clear of all danger; and that the only hope of avoiding injury lay, not only in endeavoring to attract his attention by the danger blasts, but also in reducing the speed of the train as much as possible. If this be so, the question was one for the jury. Of course, Coffey could be in a position of great peril although his horses' heads were not as yet actually within three or four feet of the northerly rail. (See Harrington v. Los Angeles etc. Co., 140 Cal. 520, [98 Am. St. Rep. 85, 63 L. R. A. 238, 74 P. 15].) If he was actually in such a position, and that fact was apparent to the fireman, and the fireman, nevertheless, failed to use what under the circumstances would be ordinary care to avoid the threatened injury, and the exercise of such care would have avoided the injury, all of which the jury had the right to conclude from the evidence, the failure to use such care must be held to be the sole cause of the injury, notwithstanding the previous negligence of Coffey. Such previous negligence ceased to be a factor in the eyes of the law as soon as Coffey was to the knowledge of the fireman actually in a position of peril, and he failed to use ordinary care to avoid the accident. I have in mind the well-settled rule that ordinarily the circumstances are such that one operating a train has the right to assume that one walking or riding toward a railroad track is able to and will care for himself by taking all necessary precautions to observe the approach of the train and that he will not place himself on the track at such a time as to be injured thereby. (See Green v. Los Angeles etc. Ry. Co., 143 Cal. 44, [101 Am. St. Rep. 68, 76 P. 719]; Lambert v. SouthernPacific R. R. Co., 146 Cal. 236, [79 P. 873].) But, of course, there is no room for any such assumption where the circumstances are such as to show that the person approaching is already in such proximity to the track as to reasonably raise the question whether he will be able to get out of the way of the train. (See Harrington v. Los Angeles Ry. Co.,140 Cal. 520, [98 Am. St. Rep. 85, 63 L. R. A. 238, 74 P. 15];Everett v. Los Angeles etc. Ry. Co., 115 Cal. 125, [34 L. R. A. 350, 43 P. 207, 46 P. 889].)
I am therefore of the opinion that in view of the last clear chance doctrine, as was held by the learned district court of *Page 333 appeal, the verdict against defendant Railroad Company has sufficient support in the evidence.
Lorigan, J., and Lawlor, J., concurred.
Rehearing denied.