concurring.
The judgment rendered herein, the affirmance of the judgment of the Court of Civil Appeals, has my approval, but the reasons given for the judgment in the majority opinion do not. The opinion holds that the doctrine of discovered peril has no application to the case because “the injured person was not in danger from, and not touched by, the vehicle or instrumentality controlled by the defendant sought to be charged under that doctrine.” It is apparent from the opinion as a whole and its emphasis of the fact that the westbound bus did not strike Mrs. Elder, the petitioner, that the words “was not in danger from” are intended to mean that Mrs. Elder was not in danger of being struck by that bus. The decision as reflected by the opinion is made solely upon the conclusion that the doctrine of discovered peril will not be applied to the case because the westbound bus was not about to strike and did not strike Mrs. Elder, and that on that account the driver of the bus owed no duty to try to save Mrs. Elder after he discovered that she was in a position of peril.
The theory of petitioner’s case, in that part of her petition in which allegations of discovered peril are. made, is that immediately before she was struck by the eastbound bus she was, although she herself was negligent, in a position of peril, and that the westbound bus, as it approached her and without any primary negligence on the part of its driver, was one of the factors of her perilous position, that is, it was a part of the circumstances existing at that particular time that made her position one of peril. She contends that, although she did not know that the eastbound bus was approaching her as she stood in the middle lane and near the line between that lane and the north lane, she was in fact “boxed in” or “bottled up” by that bus *645and the westbound bus as it approached in the north lane, and that she could and would have escaped: from that position of peril by going upon the north lane or crossing it if the driver of the westbound bus had stopped the bus or reduced its speed or turned it off the pavement and onto the shoulder of the highway.
The paved highway, having three traffic lanes each ten feet eight inches in width separated by marked lines, runs east and west. Mrs. Elder intended to cross' the highway from the south to go to a bus stop on the north side of the highway. She had crossed the south line and stopped in the middle lane about two feet from the line between the middle and north lanes. She stopped there to wait for the westbound bus, which she saw approaching in the north lame, to pass. She did not see the eastbound bus. A short time before the eastbound bus struck her it had turned into the middle lane to pass an automobile which was going east in front of it in the south lane. The driver of the westbound bus saw Mrs. Elder standing in the middle lane and near the south line of the north lane when his bus was about seventy-five feet east of her, and he saw the eastbound bus in the middle lane approaching her. He testified that he realized that “she was in a bad: spot out there” and that he slowed his bus down so that he was sure he had it under control and could stop it if necessary, and that he pulled his bus over to the north side of the pavement and kept it a safe distance from her.
It clearly appears from the testimony of Ellerd, the driver of the westbound bus, that he saw Mrs. Elder’s position of peril, realized that she was in peril, and took precautions to save her. The Court of Civil Appeals in its opinion, written by Justice Boyce, correctly said:
“When Ellerd saw that the appellant (Mrs. Elder) was in danger, he had the duty of getting his bus under control and of operating it in a manner which would permit the appellant, should she become aware of her peril, to step out of the way of the approaching eastbound bus without danger of being struck by Ellerd’s bus.”
The majority opinion of this Court seems to hold that, although Mrs. Elder was in peril by reason of her position in the highway and the two busses approaching, and although the driver of the westbound bus discovered and realized her peril, he was under no obligation to do anything whatever to help save her to avert her injury. This is to say that the driver would have *646been justified in continuing to proceed as he was proceeding and without trying to stop or turn aside, although the result of his doing so, as he knew or should have known, would be to prevent her from entering upon the north lane and thus escaping from the bus that was bearing down upon her from the west. This conclusion is reached solely because Mrs. Elder was about to be struck by the other bus and not by EHerd’s bus.
The new duty, when the position of one in peril is discovered and realized1, to use ordinary care to prevent or avoid the injury of that person, arises and is imposed upon principles of humanity. Texas & Pacific Ry. Co. v. Breadow, 90 Texas 26, 31, 36 S. W. 410. In discussing the doctrine this Court has said:
“For, we do not see how conduct can be characterized otherwise than as exhibiting reckless indifference to destroying human life or causing human suffering, where it consists in failure to use ordinary care to avoid the infliction of death or serious bodily injury on another in a position of imminent peril, after it is realied that the imperiled person can not or will not save himself. Ft. Worth & D. C. Ry. Co. v. Shetter, 94 Texas, 199, 59 S. W. 533. And! the civil consequences of such conduct should be the same as for a wilful or wanton act. 2 Cooley on Torts (3rd ed.), p. 1442.” Wilson v. Southern Traction Company, 111 Texas 361, 367, 234 S. W. 663.
The reasons for the doctrine and the principles upon which it is based are as appropriate to this case as they are to the case in which one is in danger of being struck by the vehicle controlled by the defendant sought to be charged. Petitioner was in a position of peril. The driver of the westbound bus discovered a,ndi realized her peril. And if in the time that he had and in the use of ordinary care he could have saved her from injury or prevented or averted her injury, by stopping or turning aside, and his failure to do that was a proximate cause of her injury, his conduct cannot “be characterized otherwise than as exhibiting reckless indifference to destroying human lifé or causing human suffering” and he and his employer should suffer the civil consequences of his conduct.
The case is not one of requiring a person, who is in no way connected with a situation or circumstances which make the position of another one of peril, to go to the aid of the imperiled person. Here, as has been said, the driver of the westbound bus, through no fault up to that time on his part, found that the bus he was driving and as he was driving- it had become a part of a situation or of circumstances that made Mrs. Elder’s position *647perilous. Why should the doctrine not be applied? Why should not a new duty arise and be imposed upon the driver of the westbound bus to use ordinary care so to handle his own bus as to give Mrs. Elder the opportunity to escape from the position of peril ? Should the driver be permitted, to shut his eyes and do nothing merely because it was not his bus that was about to strike her?
The majority opinion cites and: quotes from McLaughlin v. Los Angeles Ry. Corp., 180 Cal. 527, 182 Pac. 44. The opinion in that case contains an expression, substantially the same as that in the majority opinion herein, that it would be without precedent to apply the doctrine of discovered peril where “the injured person was never in danger from, and not touched by, the instrumentality over which the individual charged with negligence had control.” For the reasons that have been stated, it is my opinion that this expression should not be adopted as announcing a correct rule of lav/. It may be added that it was not essential to the decision of that case, since the court held that the facts in evidence did not warrant a finding that the motorman was negligent after he discovered the peril of the woman who was struck and killed by the other car.
The Court of Civil Appeals, in affirming the judgment of the trial court, held, after discussing the evidence as to what Ellerd did following his discovery of Mrs. Elder’s peril, that “the conduct of Ellerd did not raise the issue of liability under the doctrine of discovered peril.” It concluded that the evidence did not tend to prove that he failed, in the short time that he had, to use ordinary care to avoid her injury. A careful examination of the evidence convinces me that this conclusion is correct. The Court of Civil Appeals has discussed the evidence and there is no need of repeating it. The same evidence bears upon the question of proximate cause. It is my belief that it cannot reasonably be inferred from the facts in evidence that Ellerd’s failure to do more than he did in the effort to save Mrs. Elder was a proximate cause of her injury.
Associate Justice Taylor concurring.
Opinion delivered March 18, 1946.