(concurring). I concur in the opinion prepared *176by Mr. Justice Jolmson. The personal injuries involved, in this action were sustained in July, 1912, but the action was not instituted until in April 1917, or nearly five years after the injuries were sustained. (The companion case, — instituted by the father to recover for the loss of service of his son and moneys expended in furnishing medical treatment, — was not instituted until June 17, 19IS.)
The first trial of this action was had in June, 1917, and resulted in a general verdict in favor of the plaintiff in the sum of $3,000. The trial court, however, set the verdict aside and ordered judgment in favor of the defendant notwithstanding the verdict. An appeal was taken, and, in an opinion written by the present Chief Justice, this court held that the defendant was not entitled to judgment on the merits as a matter of law, and that consequently the trial court erred in ordering judgment notwithstanding the verdict. This court, however, did not reinstate the judgment but ordered that a new trial be had so as to enable the parties to submit to a jury the questions of fact on which liability depends. The opinion of this court in the most unmistakable terms indicated that, under the undisputed facts in the case, the defendant was liable only by application of the “last clear chance” or “discovered peril” doctrine. In other words, this court ruled that the defendant was liable only in case the jury found as a fact that the engineer actually saw the boy in time, so that by the exercise of reasonable care and prudence, he could have stopped the train and avoided injuring the boy.
In the opinion the court said:
“The sole question in this case, requiring our attention, is whether upon the record, and the verdict of the jury actionable negligence of the defendant is shown through its failure to avoid injury to the boy after discovering him to be in a position of peril. . . .
“It was the duty of the defendant to exercise ordinary care to avoid injury to the boy after discovering him to be in a place of peril. . . .
“The fact that the boy was a trespasser on the tracks of the defendant railway, and that he was guilty of contributory negligence, did not absolve the defendant from its performance of this duty.
“The jury, upon special questions submitted found that the boy was negligent in lying on the railway track, that he was there asleep just before the accident occurred, and that the engineer’s view was not ob*177structed by a dog lying on such track so that he could not see the boy in time to stop the train. . . .
“Necessarily from the special findings made, the jury, pursuant to the instructions of the court in this regard, must have found, to support the general verdict rendered, that the engineer did see the boy about the time he first saw the dog and in time to have avoided the injuries sustained by the exercise of ordinary care. This court is not prepared to say as a matter of law, that the jury were not warranted in so finding under the evidence. The jury did find that the dog did not obstruct the view of the engineer so that he could not see the boy. Thera is, however, no special finding of the jury that the engineer did in fact see the hoy in time after such discovery, to avoid the injuries. It is clear, therefore, under the evidence, that the doctrine of lasl clear chance applied, if the engineer saw the hoy at or about the time he first saw the dog.
“The majority of the court are of the opinion that there is some substantial evidence upon which the jury might base a finding that the engineer did see the boy in time to avoid the injury. But they doubt if the jury did in fact so find, or have any intention of so doing. This is especially so in view of the finding of the jury that the boy had been asleep, which finding was contrary to the testimony of the boy. Accordingly a majority of the court are of the opinion that the judgment; should not be reinstated, but that the case should be remanded for further proceedings upon the motion for a new trial. The majority also deem it proper to suggest that, in the event a new trial is ordered and had, special interrogatories ought to he submitted to the jury upon the controlling questions of fact arising under the last clear chance doctrine
The case was thereafter tried in the district court in May, 1919, and submitted to the jury in conformity with the views expressed and the directions given in the decision of this eburt. The case was submitted to the jury for a special verdict. The findings of the jury on the controlling question involving the application of the last clear chance doctrine were as follows:
Question No. 5. Did the engineer or fireman actually see the boy on the track in time, by the exercise of ordinary care, to stop the train and avoid injuring him ?
*178Answer. No.
Question No. 6. Did the trainman wilfully and negligently fail to stop the train after the presence of the boy on the track was actually and in fact known to them?
Answer. No.
Judgment was entered in favor of the defendant upon such special verdict. Thereafter, plaintiff made a motion for a new trial which was denied by the trial court. Later plaintiff made a second motion upon the ground that the stenographer’s notes had been lost, or stolen. This motion was granted. On appeal this court held — that the loss of the stenographer’s notes did not constitute a ground for a new trial, and that consequently the trial court erred in granting such motion, 47 N. D. 210, 181 N. W. 606. Thereafter, plaintiff brought an action in equity and obtained a new trial under the rule announced in Bruegger v. Cartier, 20 N. D. 72, 126 N. W. 491. The third trial was had in June, 1922. On this trial, the case was again .submitted to the jury for a special verdict. Judgment was entered thereon in favor of the plaintiff. Defendant moved for judgment notwithstanding the verdict or for a new trial. The motion was denied and it has appealed from the judgment and from the order denying its motion for judgment notwithstanding the verdict or for a new trial.
On this appeal defendant asserts that the trial court erred in its instructions to the jury; that the evidence is not sufficient to support some of the controlling findings; that improper and inconsistent questions were submitted; and “that the special verdict is not sufficient to justify the judgment entered here, in that there is no finding in the special verdict that the peril of the boy was discovered in time to stop the train.” I will consider the last stated contention. The others have been so fully and ably discussed by my brother Johnson that I could add nothing to what he has said.
As has already been indicated, in the decision of this court on the first appeal it was ruled that liability on the part of the defendant existed only in case the engineer actually saw the boy on the track in time to stop the train and avoid injuring him. And it was suggested that upon a retrial of the case special interrogatories be submitted to the jury “upon the controlling questions of fact arising under the last clear chance doctrine.” In discussing the basis of the “last clear *179chance” doctrine, Ruling Case Law says: — “The basis of recovery in this ease as in others is the defendant’s superior knowledge of the peril. It has been said that the ground upon which a plaintiff may recover, notwithstanding his own negligence, is that the defendant, after becoming aware of the danger to which the plaintiff was exposed, failed to use a proper degree of care to avoid injuring him. In many of the cases the defendant’s conduct is characterized as having been ‘wilful,’ ‘wanton,’ or ‘reckless,’ but very plainly there need have been no express intention to inflict an injury. The defendant's knowledge however, must have been actual knowledge; he is not to be held liable upon proof that he ought to have discovered the plaintiff's perilous situation for such proof does not establish superior knowledge of the peril. It is what the defendant did or failed to do after acquiring knowledge of the plaintiff's peril that constitutes the breach of duty." 20 R. C. L. pp. 141, 142.
It is obvious therefore that the pivotal question of fact in this case is: “When did the engineer first see the boy on the track ?” Or stated otherwise, “How far was the locomotive away from the boy at the time the engineer actually saw the boy and became aware of his presence on the track ?” For manifestly it is only after this fact is established that an intelligent inquiry can be conducted into the further question whether after such discovery the engineer could, by the exercise of due care, have stopped the train and avoided injuring the boy.
It will be noted that upon the second trial the jury was specifically asked to find whether the engineer actually saw the boy on the track in time so that, by the exercise of ordinary care, he might have stopped the train and avoided injuring him; also,'whether the trainmen wilfully and negligently failed to stop the train after the presence of the boy on the track was actually known to them. The jury answered both of these questions in the negative. But, upon the third trial, that is, upon the trial involved on this appeal, no question was submitted embodying the specific proposition of whether the boy was discovered by the engineer in time so that he might have stopped the train and avoided the injury. In fact, the questions submitted on the trial involved on this appeal seem to have been framed so as to avoid this very specific proposition. ■ It is contended by the respondent that Questions 8 and 9, submitted upon the last trial, covered the element, whether tire *180engineer actually discovered tlie boj in time so that the injury might have been avoided. It seems to me that this contention is unwarranted. Questions 8 and 9 and the answers returned thereto, are as follows:
“Question No. 8. Did the engineer of the train which ran over the plaintiff, Edmund Dubs, before running over the said Edmund Dubs, discover him, the said Edmund Dubs, to be in a position of peril on the railroad track?
“Answer. Yes.
“Question No. 9. Did the engineer after discovering the said Edmund Dubs to be in a position of peril on the railroad track fail to exercise ordinary care to avoid injuring him, the said Edmund Dubs ?
“Answer. Yes.”
It will be noted that by question No. 8, the jury merely found that the engineer discovered Edmund Dubs to be in a position of peril on the railroad track before the train ran over him. There was no need of submitting this question to the jury. The court might well have directed the jury to answer this question in the affirmative. At no time has the. engineer denied that he saw the boy in a position of peril on the railroad track before the train ran over him. On all three trials, the engineer has testified that he did see him when the locomotive was about 40 feet away. lienee, manifestly, under the evidence, only one answer could be returned to this question, i. e., an answer in the affirmative. The question, however, did not inquire as to when the engineer discovered Edmund Dubs upon the track. If it is true, as the engineer-testified, that he first discovered the boy, Edmund Dubs, when the locomotive was only about 40 feet away, then concededly, there is no liability in this case. The answer which the jury returned to question No. 8, is just as consistent with the idea that the engineer first saw the boy when the locomotive was only about 40 feet away, as that he discovered him when the locomotive was 200 or 300 feet away. Hence, in so far as question No. 8 is concerned, it is manifest that it, and the answer thereto, in no manner covers the controlling question of fact involved in this case.
But respondent contends that the jury, in answering question number 9 in the affirmative, must have found that the engineer saw the boy in time, so that by the exercise of ordinary care, he could have stopped (he train and avoided injuring him. Tt seems to me that this conten*181tion is also wholly unfounded. Question number 9 did not involve the element of time, that is, it did not involve, or ask the jury to consider, whether the engineer actually saw the boy in time so that he could have stopped the train and avoided injuring him. The question meroly asked the jury to pass judgment upon tire acts of the engineer after he discovered the boy upon the track. It is elementary that the following three elements are essential to actionable negligence: (1) The existence of a duty on the part of the defendant to protect the plaintiff from injury; (2) failure on the part of the defendant to perform that duty; and (3) injury resulting to the plaintiff as a result of defendant’s breach of duty. The absence of any one of these three elements renders a complaint bad, or the evidence insufficient. 29 Cyc. pp. 419, 420.
It is well settled that a special verdict must contain findings in favor of the party having the burden of proof upon every material fact in issue between the parties. Boulger v. Northern P. R. Co. 41 N. D. 316, 171 N. W. 632. Hence, in an action like this where damages are sought to be recovered for personal injuries claimed to have been occasioned by the negligence of the defendant, and there is a conflict in the evidence or the conclusions which may be drawn therefrom, the special verdict in order to justify a judgment in favor of .the plaintiff must contain findings of ultimate facts in .favor of the plaintiff as to all the three essential elements above mentioned.
It is conceded that there was no duty on the part of the defendant to keep a lookout. In other words, defendant’s duty towards the plaintiff first sprang into existence -when the engineer actually saw the boy upon the track. Hence, defendant here is liable only in case: (1) the engineer after discovering the boy failed to exercise the required care to avoid injuring him; and (2) the negligence of the engineer after discovering the hoy occasioned the injuries for which compensation is sought to be recovered in this action.
To justify a"judgment in favor of the plaintiff here, it is not sufficient that the special verdict contains a finding that the engineer was negligent in his acts after he discovered the boy upon the track, but there must further be an express finding to the effect that such negligence, — that is, the negligence after discovering the boy upon the track,— is the proximate cause of the injuries for which compensation *182is sought. For negligence alone does not constitute a cause of action. A negligent act becomes actionable only when it is the proximate cause of injury sustained by some one to whom the defendant owed a duty which was violated by such negligent act. It will be noted that question No/ 9 involves only the first proposition, i. e., that of the failure to exercise care after tire discovery of plaintiff’s peril, and it, in no manner, involves, or requires a finding upon, the second question, i. c., whether the breach of that duty was the cause of plaintiff’s injuries. In other words, it does not involve, or require the jury to find, whether the engineer saw the boy in time so that, by the exercise of care, the injury might have been avoided.
Not only was no question submitted involving this element, but, as pointed out in the opinion prepared by Mr. Justice Johnson, there was submitted to the jury a number of other questions implying that the defendant was required to keep a look-out. These questions coupled with the instructions given could hardly have failed to confuse the jury. It may, also, be mentioned that the court wholly failed to instruct on the burden of proof. While it does not impress me that the failure to give such instruction constitutes prejudicial error, in the absence of request therefor, in Nygaard v. Northern P. R. Co. 46 N. D. 1, 178 N. W. 961, the trial court ordered a new trial principally on the ground that it had failed to instruct on the burden of proof. The ruling of the trial court in the Nygaard Case was sustained by this court in an opinion written by the present Chief Justice. If there.was error in failing to instruct on the burden of proof in the Nygaard Case, it is difficult to see why that would not also be'true here. In the Nygaard Case, the jury made findings on controlling questions against the party having the burden of proof, while in this case the findings which it is said justifies a judgment in favor of the plaintiff were in favor of the party having the burden of proof.
On the record as a whole I am of the opinion that a situation is presented whore this court can neither affirm the judgment, nor order a dismissal of the action. In other words, I believe that it is the duty of this court to remand the case for a new trial.