I concur in the results of the prevailing opinion, and in general with the reasoning advanced in support thereof.
I think the second assignment of error, the refusal of the trial court to instruct on the train crew's failure to keep a proper lookout, ought to be divided into two parts according to the effect of a failure to keep a proper lookout. I think the evidence together with all legitimate inferences therefrom is all one way, that the train, even with the best of lookouts, could not be stopped after it became apparent to the crew that the driver of the truck was not going to stop. There simply was not time then for the train to be stopped in order to avoid the collision. I adopt the reasoning of the main opinion in that regard. The second effect of failure to keep a proper lookout might result in a failure to sound a timely warning of the near approach of the train after it should have been appreciated by a properly vigilant crew that the truck was going to drive onto the track. The appellants cite Graham v. Johnson, 109 Utah 346,166 P.2d 230, wherein we held, among other things that the clear chance to avoid an accident might not necessarily involve a stop, but a duty to sound a timely warning in cases where the plaintiff was not trapped but merely inattentive.
This duty may be in the case of a train quite different from a statutory duty or traffic rule to sound a bell or blow a whistle a certain distance from a crossing as a safety measure. The alleged duty I am here speaking of is the timely sounding of a warning when the predicament of plaintiff should be apparent to one performing his duty of keeping *Page 216 a watch. As the main opinion states, the Johnson case was quite different from the present case. In any case, regardless of what sort of watch was kept when it should have been apparent that the truck was going to drive onto the track, there was no time to avoid a collision. So as to the collision the failure to keep a proper lookout, if any, was not a contributing cause. The main opinion well states this proposition. And so to the alleged failure to give warning after the emergency was appreciated, there is no showing that the warning would have done any good, that is, that assuming, proper watchfulness a warning could be given in time to give the driver of the truck sufficient opportunity to escape from his car or get out of his stall and proceed to safety. We held in Graham v. Johnson, supra, that the clear chance doctrine was applicable in situations where there was a clear opportunity to avoid the accident, and that means, in this case, a clear opportunity to avoid the collision, and if not the collision, then personal injuries. The law does not hold one guilty of a negligence in avoiding damage to another who is himself guilty of negligence in getting himself into a trap or dangerous position, unless it is first clear that there was ample opportunity on the part of the defendant to bring about an avoidance of the consequences of plaintiff's negligence in whole or in part. And under this doctrine defendant cannot be held to niceties in making choices of action since the situation demands quick action. As the main opinion well states,
"The opportunity to avoid the accident must be not a possibility; it must be a clear opportunity."
Under the evidence in this case, including that of Miss Bowers, I think we must say that in law, even though there was testimony from which it might be inferred that the lookout was not up to par, there is no showing that such delinquency contributed to the decedent's death either as primary negligence or as a factor in the clear chance doctrine. It is for these reasons that I concur with the conclusions of the prevailing opinion in regard to the second *Page 217 assignment of error to the effect that the court failed to instruct as to keeping a proper lookout.
I concur in the holding and in the reasons stated in the prevailing opinion that in the statutory action for death the defendant may interpose the contributory negligence of plaintiff as a defense. While the statutory cause of action given to the heirs or personal representative of a decedent is different from that of an injured plaintiff in that the damages given for loss by death are different, the cause for action is the same, to wit, the negligence of the defendant. Contributory negligence is a defense not because it cancels out the defendant's negligence, but because it concurs in producing the damage. The common law refused to aid a person in recovering damages when he himself failed to exercise the standard of care imposed by the law. See Bohlen, Studies in the Law of Torts, Ch. IX, "Contributory Negligence," pp. 500-535. This policy, of course, is subject to change by legislation which proportions the delict or assesses the respective faults of each which contributed to the damage. The Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., is an instance of this.
I concur in the holding that there was no error in the court's instructions regarding the duty of the defendant to maintain a good and sufficient crossing. Moreover, unless it is shown that the crossing was in such condition as to so substantially impede the progress of the driver of the car as to trap him so he could not proceed, and that this delayed him for such time as prevented him from avoiding the collision, the condition of the crossing could not be said to have contributed to the accident. A driver who drives in front of an oncoming engine or train with insufficient time to cross is hardly in position to say:
"If you had made it smoother, I might or could have gotten clear by a hair."
For the reasons herein given I concur. *Page 218