Petition for rehearing denied July 14, 1936 ON PETITION FOR REHEARING (59 P.2d 403) The petition for a rehearing and the comprehensive brief accompanying it challenge the *Page 223 propriety of our previous decision in its entirety. They, however, offer no serious criticism of our narrative of the facts.
The appellant (petitioner) argues again that the plaintiff's infraction of 1931 Session Laws, chapter 360, p. 654, § 58(f), by his failure to have upon the rear of his bicycle at the time of the collision a reflector or a red lamp, was not only negligence but that the law of contributory negligence demands a conclusion that the omission was a contributing cause of the plaintiff's injury, thus entitling the defendant to a directed verdict. Appellant's brief states:
"The law declares (1) that he who operates a bicycle after a certain hour without a red rear light or reflector is in danger of being hit from the rear by an overtaking vehicle; that the lack of such a light creates a hazard; (2) to avert such collision the law requires the bicycle to display a rear light or reflector giving warning for a distance of 200 feet.
The plaintiff displayed no such warning, light or reflector.
In so doing he was negligent.
He was hit from the rear.
The danger sought to be averted occurred.
This constitutes contributory negligence as a matter of law, from the consequence of which plaintiff can only escape by pleading and proving that the defendant actually saw him in time to have avoided hitting him, and this is the same rule which you adopted in all your previous cases: Plinkiewisch v. Portland Ry., Light Power Co., supra. Stewart v. Portland Ry., Light Power Co., supra. Dorfman v. P.E.P. Co. Morser v. Southern Pacific, supra. Emmons v. Southern Pacific supra, and a dozen others and is the general law of the land."
The appellant evidently believes that in all instances where these six elements are present all reasonable *Page 224 men draw the conclusion that the automobile struck the bicycle because the latter carried neither light nor reflector. We believe, however, that many reasonable men believe that the absence of the light upon the bicycle under such circumstances is not of necessity the cause of the collision. We all know that many rear-end collisions occur upon both the highway and the railway tracks in broad daylight. We know that not infrequently an automobile collides with the side of a train, or other stationary object, in the daytime. The absence of a lookout ahead sometimes accounts for these accidents. Fog in the daytime or a blinding light at night may conceal the object ahead. The absence from the appellant's compilation of the seventh element necessary to support his conclusion — that the absence of the light upon the bicycle was the cause of the collision — is significant. In our previous opinion we reviewed several decisions which hold that when substitute lights are present which clearly render the bicyclist visible his failure to carry a reflector or a light is not necessarily the cause of his injury when struck from the rear by an overtaking car. To these decisions, we add the following review. In each instance the decision from which we shall now quote, in our opinion, supports our previous conclusion. FromOsbun v. De Young, 99 N.J.L. 204 (122 A. 809), we quote:
"It is further insisted for appellant that the court erred in refusing to charge the following request: `That if the jury believes that there was no tail light on the Martin truck at the time of the accident, or if there was a tail light such as Martin described, that Osbun and Hart obscured it from the view of Welsh, then the plaintiffs were guilty of contributory negligence and they cannot recover.' This request is manifestly unsound as a legal proposition, in that it erroneously assumes *Page 225 that in the absence of a tail light on the truck, or its obscuration by Osbun and Hart, the plaintiff is debarred of a recovery, regardless of the fact whether or not either of the circumstances alluded to was the result of negligence and a proximate contributing factor to the defendant's negligence that caused the plaintiff's injury. For it is firmly settled that it is only where the plaintiff's act is a negligent one and proximately contributes to the defendant's negligence that caused plaintiff's injury that the latter is debarred of a recovery."
From Simpson v. Miller, 97 Mont. 328 (34 P.2d 528), we quote:
"Every motor vehicle operated or driven on the highways, must `between one hour after sunset and one hour before sunrise * * * display two white lights in front', etc. Section 1753, Rev. Codes 1921. A violation of the statute constitutes negligence, but, in considering whether or not such negligence contributed to the accident or barred recovery, we must take into consideration the conditions existing at the time and place of the accident. Knott v. Pepper, 74 Mont. 236, 239 P. 1037. The mere fact that a vehicle is on the road without lights, contrary to the requirements of the law, does not excuse the driver of another vehicle from the effect of running into it if the road is so lighted that it was clearly visible and he could have avoided the collision by the exercise of ordinary care; whether or not these facts exist is a question for the jury. Decou v. Dexheimer (N.J. Sup.) 73 A. 49. Herein, instructed that the plaintiff was negligent and that they should find for the defendant if they found from a preponderance of the evidence that such negligence contributed to his injury, the jury found for the plaintiff, and there is substantial evidence in the record that the Myhre car was plainly visible from a much greater distance than the corner from which the defendant saw it; it was practically under a street light. * * * The evidence, therefore, warrants the implied *Page 226 finding that the fact that the car was not carrying headlights did not contribute to the injury, and that the plaintiff was not guilty of contributory negligence in failing to drive the car off of the street or to himself leave the car in order to avoid injury. As well might a pedestrian be presumed to expect that a motorist would suddenly drive his car across the curb and onto the sidewalk and consequently be held guilty of contributory negligence in failing to avoid being struck by entering an adjacent building."
From Anderson v. Sterrit, 95 Kan. 483 (148 P. 635), we quote:
"The plaintiff had no license to ride his bicycle and carried no light, contrary to an ordinance of the city. The absence of a license was not a factor causing the collision, and the defendant testified that he saw the plaintiff when he was a long distance from the point of collision. Consequently neither violation of the city ordinance contributed to the plaintiff's injury."
From Surmeian v. Simons, 42 R.I. 334 (107 A. 229), we quote:
"It appears that about ten o'clock on the night of August 14, 1917, the plaintiff was driving a two seated carriage upon Elmwood avenue in the town of Warwick; that he was proceeding toward the north and was upon the extreme easterly side of the traveled part of the road; that when he had reached a point near the intersection of Pawtuxet avenue with Elmwood avenue, about one third of a mile south of the bridge over which Elmwood avenue crosses the Pawtuxet river, his carriage was struck from behind without warning by an automobile operated by the defendant, who at that time was also proceeding northward on Elmwood avenue. As a result of this collision the carriage of the plaintiff was injured, his horse was caused to run away, and the plaintiff claims that he received personal injuries. * * * Said night was warm, the weather was fair but the moon was not shining. This *Page 227 part of Elmwood avenue is in a suburban district and is lighted by incandescent electric lights. There is a conflict in the evidence as to the distance between said lights and as to the extent to which said lights illuminated the road on the night in question. The defendant claims that the plaintiff was guilty of contributory negligence in that at the time of the accident he was driving said carriage in violation of the provisions of Chapter 1028, Pub. Laws, 1914. Said chapter, among other things, provides as follows: `Sec. 16. Every vehicle, when located or operated on any public highway or bridge shall display one or more lights on said vehicle so placed as to be visible both in the front and the rear, during the period from one hour after sunset to one hour before sunrise.' Whether or not the plaintiff just before the accident did display one or more lights on his carriage so placed as to be visible from the front and the rear was one of the disputed issues in the case. The testimony on this point was conflicting; the jury found specially that the plaintiff did not. * * * As a matter of law the finding that the plaintiff was acting in disregard of the statute is not conclusive upon the question of his right to recover. The purpose of the statutory provision is plain, viz., to apprise travelers, between the hours named, of the presence and location of vehicles upon public highways and bridges. In case of a collision during those hours between a traveler who is complying with the statute and a vehicle not displaying one or more lights, if such traveler is exercising reasonable care and the collision is due to ignorance on his part of the presence of said unlighted vehicle in the dark highway, then the absence of such light or lights may be considered as an efficient and immediate cause of the collision and the fact of the violation of the statute is evidence of negligence on the part of the driver of the unlighted vehicle. If however the collision between such traveler and the unlighted vehicle occurs in the nighttime upon a highway which is itself so well lighted that the unlighted vehicle can be plainly seen by other travelers *Page 228 then the fact of the violation of the statute is immaterial in the consideration of the negligence of the respective parties, because the absence of lights upon the vehicle had no causal relation to the collision. Therefore the condition of the light in the highway in the neighborhood of the place of the accident in question became a material matter in the consideration of the case. According to the testimony of some of the witnesses who, as far as the record discloses, are disinterested said highway was so light that at the point in question the defendant if he had been exercising reasonable care could not have failed to see the carriage of the plaintiff in front of him in ample time to have avoided it. Witnesses for the defendant testified that at the time and place of the accident the highway was dark so that the carriage of the plaintiff could not be seen by the defendant until he was so close to it that the collision could not be prevented."
The order of the trial court in setting aside the verdict for the defendant and granting a new trial was affirmed.
From Denunzio v. Donahue, 204 Ky. 705 (265 S.W. 299), we quote:
"According to the plaintiff's evidence, her lights had gone out as she came to town and her attention had been called to this by the traffic policeman who instructed her to proceed very slowly, not exceeding eight (8) miles per hour, in going through town. She says she observed the officer's directions and was traveling very slowly as she approached the intersection of Beechwood, over which hung a bright arc light. Passing under the light she crossed the intersection to the north side of Beechwood some twenty or thirty feet, when the car driven by Denunzio suddenly turned from the west side of the street towards the car in which she was riding on the right side of the street and ran into it, causing the injury of which she complains. * * * While appellee Donahue was guilty of negligence in driving her car without lights, the jury may have concluded, *Page 229 as well they could, that the want of lights on the Donahue car did not in any way contribute to the accident. Miss Donahue was not guilty of contributory negligence as a matter of law if her statement of facts is true."
See to the same effect Bowers v. Carolina Public ServiceCorp., 148 S.C. 161 (145 S.E. 790), and Nielson v. Walker,105 Cal.App. 23 (286 P. 1091).
From Archer v. Gage, 126 Or. 532 (270 P. 521), we quote:
"Defendants would not be liable in damages for failure to observe some requirement of the law in respect to lights unless such failure contributed to the injury."
From Plinkiewisch v. Portland Ry. L. P. Co., 58 Or. 499 (115 P. 151), we quote:
"The fact, if it be a fact, that the car had no headlight, can have no bearing, as the testimony shows that the light was sufficient to enable a person nearly a block away to see both deceased and the car."
In Strong v. Ernst, 169 Wn. 617 (14 P.2d 697), the plaintiff's car ignored a stop sign, and, passing on, collided with the defendant's car. The defendant contended that the plaintiff's infraction of this traffic regulation constituted contributory negligence barring his recovery. The court held that an issue still remained whether the plaintiff's infraction of the traffic regulation was a concurring cause of the accident.
In all of the above instances, as in the others mentioned in our previous decision, the courts hold that where substitute lights are present, whether natural or artificial, a conclusion is not inevitable that the plaintiff's failure to have displayed the statutory lights was a concurring cause of his injury. The fact that the plaintiff was plainly visible is deemed evidence that the *Page 230 defendant was not looking ahead; and, if he was not looking ahead, the absence of a light upon the bicycle could not have been a concurring cause of the accident. We, therefore, abide by the conclusion expressed in our previous decision, that the court did not err when it denied the defendant's motion for a directed verdict.
It will be observed that the appellant argues, in the paragraph which we quoted from his brief, that our previous decision is at variance with Plinkiewisch v. Portland Ry. L. P. Co., supra;Stewart v. Portland Ry. L. P. Co., 58 Or. 377 (114 P. 936, 63 Am. Eng. R. Cas. (N.S.) 794); Dorfman v. Portland ElectricPower Co., 132 Or. 648 (286 P. 991); Morser v. Southern PacificCo., 124 Or. 384 (262 P. 252); and Emmons v. Southern PacificCo., 97 Or. 263 (191 P. 333). In each of these decisions, this court, in defining the last clear chance doctrine, pointed out that as employed in this state the doctrine is applicable only to discovered peril; that is, the plaintiff must prove that the defendant knew of the plaintiff's helplessness. In some of the above decisions this court also pointed out that the doctrine is applicable only where the plaintiff's negligence is antecedent, and that if it is still continuing he can not recover. It is evident from these decisions that any plaintiff who desires to rely upon the last clear chance doctrine must present a situation wherein (1) his own negligence brought him into a place of peril; and (2) his own unwarranted conduct would be the proximate cause of his injury but for the fact that the doctrine, in relieving from the hardships of the contributory negligence rule, construes his negligence as remote and the failure of the defendant to embrace the clear chance of avoiding the collision as proximate. But, as will be observed from the decisions above reviewed, it may be that although the plaintiff was negligent *Page 231 he was not contributing to his own injury. In that event he ought not to be required to admit a fiction and depend upon another fiction to bring him a recovery. He ought to have a right to a judicial investigation of the question whether his negligence was a contributing cause of his injury. As we have seen, a large number of courts have held that all six propositions advanced by the defendant in his above-quoted language may be present, and yet the absence of the light may not be the cause of the injury. Such, the plaintiff says, is the instant case. We see no conflict between the principles employed in the decision of this case and any previous decision of this court.
Appellant challenges our holding that the court committed no error in ruling upon the admissibility of the evidence. The questions are quoted in our previous decision. The defendant was given full opportunity to testify that he was looking ahead and maintaining a sharp lookout. His companion in the front seat was permitted similar freedom. Simpson v. Miller, supra, (at page 531), supports our conclusion.
The petition for a rehearing is denied.
CAMPBELL, C.J., and KELLY and BELT, JJ., concur. *Page 232