Morales was not negligent in stepping from the curb of the neutral ground and in attempting to cross the street because, when he did so, he had ample time to cross in front of the automobiles which were in view. There was no reason for him to anticipate that another vehicle — the motorcycle of Matthews — would pass around the automobiles on the wrong side and at an unlawfully high speed. We, therefore, quite agree that there should be recovery for the death of Morales, which resulted solely from the negligence of Matthews. Neville v. Postal-Telegraph-Cable Co., 13 La.App. 76, 126 So. 720, the facts of which were somewhat similar, has been considered but found clearly distinguishable, for there the motorcycle passed the automobile on the proper side and the cause of the accident was the negligent failure of Mrs. Neville to see the motorcycle, or to anticipate its presence. Being in accord with the ultimate *Page 163 conclusion of our associate, we concur in the decree, and therefore regret that we find it necessary to disagree with a view expressed by him which we think is not essential to the conclusion reached.
We differ with him concerning the application to the doctrine of discovered peril of the rule that one must be held to have seen what an ordinarily prudent person would have seen. If two persons are involved in an accident and the negligence of both extends to the very moment of the accident and each continues, until the moment of the impact, to have an opportunity to avoid collision, then there is no room for the application of the doctrine of the last clear chance. Harrison v. La. Western R. Co., 132 La. 761, 61 So. 782; Castile v. O'Keefe, 138 La. 479,70 So. 481; Chargois v. M. L. T. R. R. S. S. Co., 148 La. 637,87 So. 499; Jarrow v. City of New Orleans, 168 La. 992,123 So. 651. But if one actually discovers the fact that an accident is impending, and, while having an opportunity to avoid it, realizes that the other is unconscious of the danger, then the one who discovers the danger of the other and fails to take advantage of the opportunity to avert it is liable for the resulting damage in spite of the continuing negligence of the other. Rottman v. Beverly, 183 La. 947, 165 So. 153; Hicks v. T. N. O. R. Co.,186 La. 1008, 173 So. 745.
Our associate feels that, if neither actually discovers the peril of the other, nevertheless the one sued should be held liable because of the rule that one must be held to have seen what he should have seen. We cannot agree that that rule has any more application to the one person than to the other, and we, consequently, feel that there should be no recovery in such situation unless there is an actual discovery by one of the peril of the other.
In Rottman v. Beverly, supra, the Supreme Court discussed the doctrine of discovered peril, which is closely akin to the doctrine of the last clear chance, and held that in this state it may be invoked to hold a defendant liable only if it can be shown that the negligent defendant, or his employee, actually discovered the negligence of the plaintiff in time to avert an accident — actually discovered the peril — and the court rejected the view which prevails in a few jurisdictions that liability results from failure to discover the peril of the other, as well as from failure to avoid it after discovery.
In Hicks v. T. N. O. R. Co., supra, recovery was permitted because the employee of defendant "discovered that plaintiff had placed herself in a perilous position with her back turned towards him when he was 40 feet from her" and saw that she was unconscious of the danger and yet failed to avoid striking her, although the motor car, which he was operating, "could have been stopped within 26 feet." In other words, there was an actual discovery of the peril and there was an opportunity to avoid injury.
But in that case the Supreme Court quoted from Kansas City Southern Ry. Co. v. Ellzey, 275 U.S. 236, 48 S.Ct. 80,72 L.Ed. 259, language which our associate feels is authority for his view that, even if both persons, by not discovering the danger, continue negligent to the moment of the accident, there may still be a recovery by the one who is injured if the other could have seen the danger had he been careful. That language follows:
"That doctrine, rightly applied in the Chunn Case ([Chunn v. City Suburban Ry. Co.] 207 U.S. 302, 28 S.Ct. 63,52 L. Ed. 219), 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 words "or unaware of it only through carelessness" are entirely proper where it is the doctrine of the last clear chance which is involved because that doctrine applies only where the negligence of one of the persons has ceased to have active effect, has become passive; where, whatever may have been his original negligence, he no longer has the opportunity to avert the impending accident. Where this is shown and the other person still has an opportunity to avert injury, his failure to do so renders him liable under the doctrine of the last clear chance and he is liable whether he actually saw the other person or not. He should have seen him and that is sufficient. But that rule does not apply where the other person has still an opportunity to save himself and, through his own negligence, fails to avail himself of it. That the Supreme Court of the United States clearly realizes this is shown by the last part of the above quotation to the effect *Page 164 that, in order that the rule stated shall apply, it must appear that the defendant "had in fact a later opportunity than the plaintiff to avert an accident." There can be no later opportunity in the one so long as the other also has an opportunity himself.
Our associate, in his opinion, refers to the Restatement of the Law of Torts of the American Law Institute and he quotes the following:
"* * * plaintiff may recover although the defendant does not know of the dangerous position in which the plaintiff's negligence has put him. It is enough that the defendant would have known of the plaintiff's dangerous position had he been exercising that vigilance which it was his duty to the plaintiff to exercise."
But that statement is part of section 479, which declares in large type at its beginning that it applies only where "the plaintiff is unable to avoid it (the accident) by the exercise of reasonable vigilance and care"; in other words, that if the plaintiff has lost the opportunity to save himself, then and only then may plaintiff recover if defendant's negligence consists in his failure to see the plaintiff.
The statement of the rule as quoted by our associate is very accurate where the doctrine of the last clear chance is involved, but it has no application where it is the doctrine of discovered peril which must be depended upon. In McCormick Co. v. Cauley (La.App.) 168 So. 783, 786, one of the authors of this concurring opinion stated that "* * * the doctrine of the last clear chance applies just as effectively against one who should see approaching danger but fails to look for it as it does against one who actually sees it and fails to avoid it." But that case involved the doctrine of the last clear chance where the driver of the other vehicle, which was practically in the intersection, had no longer the opportunity to avoid the crash. Where he has lost the opportunity, the other party has the later chance — thelast chance — and where he has, then his failure to see may be charged against him and may create liability. But where both, as we have several times said, have an equal opportunity, then neither has the last chance and neither may recover since the negligence of each consists in failure to discover the other.
And why should the rule be otherwise? In law or in logic, why, if both persons are negligent each in failing to see the other, should one be held liable solely because he does not see and the other be permitted to recover? Suppose both are injured? Each may say: "I was injured because you, who could have seen, did not." If the plaintiff may recover in spite of his own continuing negligence just because the defendant did not see him, then recovery, where both are injured, would depend upon who could first bring suit.
We reiterate our regret at finding it necessary to disagree on the point which we have discussed, but concur in the decree.