The following opinion on rehearing was filed April 19, 1905. Former judgment of affirmance adhered to:
2. Personal Injuries: Action: Contributory Negligence: Question for Jury. In an action for personal injuries, where contributory negligence is relied upon as a defense, and where, from the facts and circumstances proved, reasonable minds may draw different conclusions concerning the negligence of the plaintiff’s intestate, such question should be submitted to the jury. 3. Evidence examined, and held not sufficient to bring the injury within the reason of the “humane doctrine” or “last chance.” Oldham, C.The former opinion in this case is officially reported ante, p. 447.
A rehearing was granted for the further consideration of the question as to whether, under all the facts and circumstances surrounding the injury as shown by the evidence offered by plaintiff in the trial of the cause in • the district court, the trial court was justified in directing a verdict for defendant on the doctrine of contributory negligence; and also for the purpose of further examining plaintiff’s contention that the facts and circumstances surrounding the injury, as shown by plaintiff’s evidence, brings the case within the reason of the “humane doctrine” or “last chance.”
We agree with plaintiff’s contention that, on a motion to direct a verdict for the defendant, the plaintiff is entitled to every inference which the jury would have been warranted in drawing from the evidence adduced. Now, it. is clearly proved that at the point where the injury occurred there were two lines of defendant’s street, railway tracks, running east and west, and that there was a space of a few feet between and separating them. It was also proved that the north line of track was used by the cars going west, and that the south line of track was used by the cars going east. It was also shown by the testimony that the deceased was familiar with the running of these cars, as he had resided for a long time in Council Bluffs, *452and passed over these car lines in going to and from his place of business in Omaha two or three times a day. The tidal judge concluded from this testimony that deceased was clearly negligent in ivalking westward on the north track without looking behind him for an approaching car, because he must have known that the west bound cars used this track. This is perhaps a legitimate conclusion under the facts and circumstances proved.
It is also in evidence that the accident occurred after midnight, and was caused by the car making the last run for that night, which was then from 8 to 10 minutes behind time. Now, it is urged by counsel for plaintiff that if it was proper from the evidence introduced to impute to the deceased knowledge of the track on which the west bound car was accustomed to run, it was also competent to impute to him knowledge of the fact that the last car going west that night would, if on time, have passed the place where the injury occurred 5 or 10 minutes before the injury; and that this fact, if believed by the jury, might excuse him from the imputation of contributory negligence in not looking behind him for an approaching car coming from the west. If this directed verdict stood only on the doctrine of contributory negligence imputed to deceased for walking westward on defendant’s north track at the time the injury occurred, without looking behind him for an approaching car, I would incline to-the opinion that such question was one of fact for the jury, rather than one of law for the court. Contributory negligence is an affirmative defense in actions for personal injuries of this nature, and where reasonable minds may draw different conclusions from the conduct on which negligence is predicated, such question is for the determination of the jury and not of the court.
We have carefully reexamined the evidence contained in the record to see whether or not it tends to show any fact or circumstance that would bring the case within the reason of the “last chance” doctrine. This doctrine, as applied to this case, is based on the duty which the de*453fendant would owe on discovering the deceased in a perilous position, from which he apparently could not and would not escape, to use every reasonable means at the command of the servants in charge of its cars to stop the car for the purpose of avoiding the accident. This doctrine has found favor in this court, and was recently applied .in the case of Omaha Street R. Co. v. Larson, 70 Neb. 591. We do not understand that it is the duty of the operators of a street railway car to stop the car as soon as they see a foot passenger occupying the track in front. We think that ordinarily the motorman may proceed toward such foot passenger on the presumption that such passenger will step off the track before the car reaches him, until it becomes apparent that for some reason such passenger, either on account of deficient hearing or other inability to apprehend his danger, cannot and probably will not be able to get off the track; and that then it becomes his duty to use all reasonable means at his command to stop the car. Now, the evidence in the case at bar wholly fails to show that the motorman, after discovering the perilous position of the deceased, could, by the use of all means at his command, have stopped the car and thereby avoided the accident. Consequently, we do not think that the evidence in the record brings this case within the reason of the “humane doctrine,” nor do we find any competent evidence in the record to show actionable negligence on the part of the defendant which was the proximate cause of the injury. From a reexamination of the record, the accident appears to us to fall in that class of casualties frequently met in life, in which there is a serious injury sustained for which no one is legally to blame.
Ames and Letton, CC., concur. By the Court:For the reasons stated in the foregoing opinion, the former opinion is adhered to.
Affirmed.