On Motion for Rehearing. Upon a more careful consideration of special charge No. 10, requested by the appellant, we have concluded that it does not clearly present the issue of discovered peril on the part of the plaintiff, but might have been construed by the jury as meaning that if plaintiff was guilty of negligence "in approaching and attempting to cross defendant's track" by reason of his failure to look for and discover the approach of the car, and that such negligence continued up to the time of the collision, he could not recover. For this reason, we withdraw so much of our original opinion herein as holds that the court erred in refusing to give special charge No. 10.
The able attorneys for appellee have filed herein a motion for a rehearing and a forcible argument in support thereof, which evidences much learning and great research, but it has failed to convince us that we erred in our holding as to the effect of discovered peril on the part of the plaintiff.
We here briefly restate our holding upon this point as follows: Though the plaintiff was guilty of negligence in failing to discover the approach of the car before driving upon the track, and this negligence continued up to the moment of the collision, and, but for the doctrine of discovered peril, would be a concurring, proximate cause of his injury, yet, if the defendant discovered plaintiff's peril in time to have avoided injuring him, *Page 547 and negligently failed to do so, the law, upon humanitarian grounds, excludes from the consideration of the court and jury such negligence of the plaintiff, and leaves the negligence of the defendant as the sole proximate cause of the injury. But, if the plaintiff also discovered his peril, and thereafter negligently failed to avoid the threatened injury, his subsequent act of negligence becomes a concurring, proximate cause of his injury, and he cannot recover.
Appellee cites the recent case of Railway Co. v. Rosenbloom,173 S.W. 215, wherein the court said: "The negligence of the party killed is no defense to an action based on discovered peril." But in that case there was no act of negligence done by the deceased after he discovered his peril. All that he did was to attempt to escape from his peril. Rosenbloom was at work where he had the right to be. We quote from that decision as follows:
"It does not appear in the statement of facts that any notice was given to Rosenbloom so that he might have escaped before the engine came so near to him. * * * There is no * * * negligence on his part, except the fact that under the conditions he attempted to make his escape on the side track in front of the approaching engine."
It is well settled that this did not constitute negligence. The engineer had the right, in the absence of any one's being where Rosenbloom was, to run upon the side track; so that, but for his discovery of Rosenbloom's peril, he would not have been guilty of negligence. The engineer saw Rosenbloom when he started across the track, and so the only issue was as to whether the engineer "failed to use all necessary efforts to avoid killing him." This was the only issue submitted by the trial court, and the issue before the Supreme Court was as to whether the trial court erred in so doing. The Supreme Court held that this was not error. This decision does not contravene our holding in the instant case.
Appellee insists that though the law be as announced in the majority opinion of this court, this case ought not to be reversed for the reason that contributory negligence on the part of the plaintiff, after he discovered his peril, was not alleged by the appellant. We quote from the twenty-ninth paragraph of appellant's answer as follows:
"That he (plaintiff) was in plain view of defendant's car as it was moving south over its line on Twelfth street in the city of Waco at a reasonable rate of speed; that said plaintiff recklessly and negligently drove his horse and wagon upon defendant's track, without making any effort whatever to avoid a collision between his said wagon and the defendant's moving car."
It is true that there is not here a specific allegation that appellee saw the car, and perhaps it was not a good plea of discovered peril on the part of the plaintiff as against a special demurrer. But no exception was taken, and we think it is sufficient in the absence of exception. A common acceptation of recklessness is a disregard of apparent or apprehended danger; and when it is alleged, as in the instant case, that appellee was in plain view of the moving car and recklessly drove in front of it, we think that it should be construed, in the absence of any exception thereto, to mean that he saw the car and realized that there was danger in attempting to cross the track in front of it.
In Railway Co. v. Wallace, 164 Ala. 209, 51 So. 371, the court said:
"As the complaint charges negligence subsequent to a discovery of the plaintiff's peril, he was chargeable only with negligence after becoming conscious of his danger. * * * The special pleas failing to aver knowledge by the plaintiff of his peril or that he was guilty of any negligence, subsequent to a discovery of his peril, were subject to the demurrers interposed."
To the same effect is Railway Co. v. Turney, 183 Ala. 398, 62 So. 887. But in each of these cases there was a special exception to the defendant's answer in so far as it attempted to set up discovered peril on the part of the plaintiff, and his subsequent negligence.
For the reasons stated, the motion for rehearing is overruled.
Motion overruled.