DISSENTING OPINION
By CROW, PJ.That 'it is reversible error to submit an issue -for determination by the jury, which is not raised by the pleadings or proof, is too well settled to need citation of authority, and in the instant case there is neither allegation nor evidence making the doctrine of last clear chance an issue, inasmuch as such evidence if any, as tended to show negligence on the part of the deceased, occurred concurrently with the negligence if any committed by defendant.
To make the doctrine of last clear chance available, the negligence of the injured person must have ceased, as a proximate cause.'
Also, in my opinion, there was no evidence tending to prove either wanton or wilful negligence by defendant; indeed, the only tendency in the evidence, to prove negligence of defendant was the failure to use ordinary care in relation to the speed with which she operated the car she was driving as the deceased was proceeding out of the range of her driving; that is to say, if he had continued to walk in the southerly direction he was going as defendant drove easterly, he could not have been injured by her car, but for some reason which the proof wholly fails to show, he suddenly jumped backward into the path of and immediately in front of her car.
By both pleading and evidence the only negligence charged on the part of the defendant, was restricted to the want of ordinary care, which made prejudicially erroneous, the charge .empowering the jury to apply the doctrine of last clear chance, or that of wanton or wilful negligence.
It was therefore prejudicial error, to charge the doctrine of last clear chance, and it would have been likewise prejudicially erroneous to have charged the doctrine of wanton or wilful negligence.
For error in charging the doctrine of last clear chance, the judgment should, in my opinion be reversed, and cause remanded for a new trial.