In discussing the questions involved in this case, it is important to keep in mind that the only theory upon which the case was submitted to the jury was that of the "last clear chance" doctrine, and that by thus restricting the scope of the inquiry the court in effect ruled that the jury must assume that the deceased was negligent in driving her horse upon the crossing at the time of the accident. That this is a correct interpretation of the situation as presented to the trial justice is disclosed by an examination of the decision in Gibson v. Railroad,75 N.H. 342, 344, where the court say: "This question [the one presented by the doctrine of the last clear chance] was submitted upon the assumption that the plaintiff's conduct in going upon the crossing might be found to be negligent." Now bearing this in mind, we will proceed to a discussion of what the last clear chance doctrine is and its application to the facts of this case.
In Nashua etc. Co. v. Railroad, 62 N.H. 159, 164, Judge Carpenter, in discussing this doctrine, said: "An accident may result from a hazardous situation caused by the previous negligence of one or both parties. If at the time of the injury the defendant is unable to remove the danger which his negligence has created, . . . the plaintiff can recover or not, according as, by ordinary care, he can or cannot protect himself from the natural consequences of the situation. If the plaintiff, in like manner, is unable to obviate the danger which his prior negligence has produced, . . . he can recover or not, according as the defendant, by the same degree of care, can or cannot avoid the natural consequences of such negligence *Page 75 If due care on the part of either at the time of the injury would prevent it, the antecedent negligence of one or both parties is immaterial, except it may be as one of the circumstances by which the requisite measure of care is to be determined. In such a case the law deals with their behavior in the situation in which it finds them at the time the mischief is done, regardless of their prior misconduct. The latter is . . . the cause of the danger; the former is the cause of the injury." This is the doctrine of the last clear chance stated in a concise and comprehensive manner. It is not the doctrine of comparative negligence in vogue in some jurisdictions, where the jury, upon a consideration of all the evidence, are permitted to say which of the contending parties is the more negligent of the two, and to find a verdict for the least negligent, — a doctrine which, until the decision of the majority of the court in this case, has not been understood to be the law of this state, — but an application of the principles of proximate and remote cause, under which a jury may be permitted to say which of the parties had the last clear opportunity to avoid the natural consequences of the situation existing at the time the mischief was done, regardless of whether that situation was produced by their prior negligence or was due to some other cause.
The decision of the majority of the court in this case cannot be sustained upon the doctrine of last clear chance, when correctly stated and applied, but must look for its support to the doctrine of comparative negligence, or be assigned to the realm of willful injuries, in which negligence plays no part and with which it has nothing to do. This is readily appreciated when the facts relating to the negligent conduct of the parties are considered. From these facts it appears that after the train was less than 500 feet from the crossing, it was beyond the power of the engineer to stop it by the exercise of any degree of care; while after that time, the deceased by the exercise of ordinary care could have stopped her horse up to within six feet of the crossing and prevented the collision. Under such a state of facts, it is apparent that the deceased and not the railroad had the last clear chance to avoid the collision, and that the negligence of the engineer in not undertaking to stop the train before it reached a point less than 500 feet from the crossing was a mere condition upon which the subsequent negligent conduct of the deceased acted to produce the resulting injury. After the train was less than 500 feet from the crossing, the engineer was both physically and mentally unable to remove the danger which his *Page 76 prior negligence had created. The train was then beyond his control. His situation, so far as an application of the law of negligence is concerned, was like that of the drunken man asleep upon the track, in Edgerly v. Railroad, 67 N.H. 312. There the drunken man was unable to avoid being injured because he had lost control of his mental and physical powers. Here the engineer was unable to avoid a collision because his mental and physical powers were totally inadequate to control certain physical forces then in operation.
The motorman in the Edgerly case, had he been on the lookout and not negligently inattentive to his duties, could have seen the drunken man on the track, appreciated his condition, and when a sufficient distance away have stopped his car and avoided the accident. So the deceased in this case, had she not been negligently inattentive, could have seen the train approaching before she reached a point less than six feet from the crossing, have appreciated the fact that the train, going as it was at the rate of thirty-two miles an hour, could not be stopped before reaching the crossing, and have avoided a collision by stopping her horse. She had driven over the crossing many times. She knew that trains were liable to be passing over it, and it was her duty to be on the lookout, the same as it was the duty of the motorman in the Edgerly case. What she would have known and appreciated had she exercised care and been on the lookout, she is in the law of negligence held to know and appreciate. A person "can no more recover for an injury caused by driving into dangerous pit of which he is ignorant, but of which ordinary care would have informed him, than for one caused by carelessly driving into a known pit." Nashua etc. Co. v. Railroad, 62 N.H. 159, 162. And so it is with the deceased.
The difficulty we are now experiencing with the last clear chance doctrine is due to the fact that it has been misstated and misapplied in certain recent grade crossing cases. It was misstated in Gahagan v. Railroad,70 N.H. 441, and is misstated and misapplied in Little v. Railroad,72 N.H. 61, Yeaton v. Railroad, 73 N.H. 285, and in the present case.
In Gahagan v. Railroad, supra, 450, where the engineer saw the plaintiff going toward the track without observing the approaching train, it was said: "If the engineer knew or ought to have known that the plaintiff's negligence would place him upon the crossing when the train reached it, the engineer was equally bound to avoid the collision as if he saw the plaintiff actually on the track." *Page 77
In Little v. Railroad, supra, 62, where the motorman saw the plaintiff approaching the track without observing the car and thought he was intending to cross, the above statement from Gahagan v. Railroad was applied, and it was said that the jury were warranted in finding "that the accident was due solely to the negligence of the defendants' motorman in not seasonably stopping the car after he saw the plaintiff turn his horses toward the track, apparently intending to cross in front of the car, and when he knew or ought to have known that the plaintiff's negligent purpose, if carried out, would place him upon the track when the car reached the place where he was crossing."
And in Yeaton v. Railroad, supra, 286, 287, where the fireman saw Yeaton approach the crossing without observing the train until he was within thirty feet of the track, and then, observing its approach, urge his horse forward upon the track, and where the question of negligence submitted to the jury was "whether the defendants' servants in charge of the train, observing the deceased's proximity to the railroad, did all they ought to have done to prevent the collision, after they knew or ought to have known of his attempt to cross the track," the court, relying upon the Gahagan and Little cases, held: "If men of ordinary prudence in the position of the defendants' servants would have known that Yeaton's act would place him upon the crossing at the time the train would reach it unless they did something to check the speed of the train, and could and would have avoided the collision, the failure of the trainmen to act with ordinary prudence was the legal cause of the injury. Upon the only ground of negligence charged against the defendants, Yeaton's conduct in attempting to cross under the circumstances, whether prudent or otherwise, was immaterial. . . . The defendants were not injured by the submission of the question of the plaintiff's care in attempting to cross the track, even if there were no evidence upon which it could be found that a man of ordinary prudence would have made the attempt."
These statements are clearly misleading, and are incorrect in so far as they convey the idea that the conduct of the defendants' servants in not stopping the train was the sole cause of the collision, if they knew or ought to have known that the plaintiff's negligent purpose if carried out would place him upon the track, and that the plaintiff's conduct after the defendants were or should have been so informed, whether prudent or otherwise, was immaterial, for the reason that the plaintiff's negligence did not cease to *Page 78 be a contributing cause and become a mere condition until after the time arrived when the plaintiff was in a place of danger from which he could not extricate himself and avoid being injured by the exercise of due care. When that time arrived was question of fact; and evidence in support thereof should have been submitted before the jury could properly be instructed that the defendants' failure to learn of the plaintiff's presence and to avoid injuring him could be found to be the sole cause of his injury. The earliest moment at which the plaintiff's purpose to go into a place of danger was or should be known by the defendants is not the period from which their failure to act renders their conduct the sole cause; for until the plaintiff's purpose is executed, and he is in a position of danger from which he cannot escape by the exercise of due care, he may abandon his negligent purpose, remain out of danger, and thus avoid being injured. And so long as he can avoid injury by the exercise of care, his negligent failure to do so is a contributing cause. It can make no difference whether a person entertains a negligent purpose to go into a position of danger, which purpose he may abandon, or, being in a position of danger, negligently purposes to remain there, although he could abandon his purpose and move to a place of safety.
The latter supposition is the exact situation that was before the court for consideration in Shannon v. Railroad, 71 N.H. 286. In that case the plaintiff's intestate, while standing in a position of danger upon a railroad bridge, apparently intending to remain until the train passed although he could have moved to a place of safety, was seen by the trainmen, who knew or could have known his intention and have avoided injuring him by stopping the train. It was held: "If, after the engineer saw that Beede was apparently intending to remain in his position, the engineer could, and in the exercise of ordinary care ought to, have attempted to avoid the collision, Beede . . . might during this interval of time have avoided the collision by an exercise of like care . . . Without his negligence the collision would not have occurred. . . . If his negligence was not the [legal or] proximate cause of his death, it was a contributing cause, and in either event his representative is not entitled to recover damages of the defendants therefor." In short, it was there held that the fact a person is in a position of danger and purposes to remain there, which purpose is known to the person sought to be charged with responsibility for his injury, does not make his negligent conduct in being and purposing to remain *Page 79 where he is a mere condition upon which the defendants' negligence acts as the sole cause, unless he could not by the exercise of care have avoided injury by abandoning his purpose and removing to a place of safety. If failure to realize one's danger and to move into a place of safety may be found to be a contributing cause, so failure to learn of a danger one is approaching and to stop before coming into the plane of danger may be found to be a contributing cause; and it would not cease to be such and became a mere condition until after he reached a position of danger from which he could not extricate himself by ordinary care.
When the case of Little v. Railroad was before the court the second time (72 N.H. 502, 503) the rule of law was correctly stated and applied. It is there said "that impartial men might reasonably find upon a consideration of the testimony, that after the plaintiff's negligence in approaching the track had brought him to a situation of actual danger, he might be unable to avoid a collision with the approaching car by the exercise of ordinary care; . . . and that the motorman, by an exercise of like care, might have avoided the collision after he discovered the plaintiff was in such situation."
As the evidence in the present case would not warrant a finding that the defendants had the last clear chance of avoiding the accident, and as the doctrine of comparative negligence is not a part of our law (Gregg v. Company, 69 N.H. 247, 251), I am of the opinion that the verdict for the plaintiff should be set aside; but as there was evidence from which it could be found that the injury to the deceased was willfully inflicted, I am also of the opinion that the plaintiff should be permitted to amend his declaration and have the case submitted to the jury upon that issue.
I am authorized to say that Judge Peaslee concurs in this opinion. *Page 80