dissenting:
I am unable to concur with the majority of the court in holding that plaintiff’s intestate, Ford, was guilty of contributory or concurrent negligence as a matter of law in driving on the railway track at the time he did. As appears from the opinion, this conclusion is based upon the ground that, “When Ford started across the railway track *634he saw or should have seen that progress might be stayed by oncoming northbound traffic on the far side.”
Thé evidence is, that after Ford had made his turn at Concord street and had started on across, the street car was 670 feet away; that the truck was moving in low gear and at a very slow rate of speed, and that he had to bring his truck to a stop, according to one of the plaintiff’s witnesses, because his passage was blocked by a congestion of northbound traffic in front of him just before he reached the concrete, caused by several cars trying to pass each other at a rapid rate of speed, running abreast. I find no evidence to show, however, that Ford saw or should have seen before he started that this situation would exist. In fact, with the traffic conditions necessarily constantly changing it is difficult to see how Ford could have foreseen what the conditions would be when he got to the other side. The way might have been clear when he started across the track and have become blocked before he could get across. On the other hand, the way might have been blocked when he started across and yet clear before he reached the other side. In view of all the circumstances, whether Ford was guilty of contributory negligence in starting across the track when he did, was, I think, a question upon which fair-minded men may differ, and was, therefore, for the jury, and not for the court to determine.
If it be conceded, however, that Ford was guilty of contributory negligence which continued up to the time of the impact, I am likewise in disagreement with the majority opinion in holding that the doctrine of the last clear chance is inapplicable. While it is true that, as a general rule, there can be no recovery when the proximate and efficient cause of the accident involves the concurrent negligence of both plaintiff and defendant, when the circumstances are such that, notwithstanding the contributory negligence of the plaintiff, there is something in his condition or situation at the time of the injury to admonish the defendant that the plaintiff is not able to pro*635tect himself, and the defendant by the exercise of ordinary care should have avoided the accident, the humane doctrine of the last clear chance is applicable. Norfolk Southern Railway Company v. Smith, 122 Va. 302, 94 S. E. 789.
In Virginia Electric & Power Company v. Vellines, 162 Va. 671, 175 S. E. 35, 40, Mr. Justice Holt said: “There is this exception to the rule that prevents a recovery where there is continued and concurring negligence. If, while these conditions exist, the defendant sees, or in the exercise of reasonable care should have seen, the plaintiff is oblivious of his danger or unable to extricate himself from a position of peril in which his negligence has placed him, then a reasonable effort should be made to avoid an accident. * * * One cannot maim or injure another merely because he is negligent.”
In the case at bar, the motorman on the street car saw, or at any rate should have seen, the truck when it was driven upon the track. He also saw, or should have seen, that the truck was moving very slowly and was halted in its progress on account of the fact that Ford’s passage was blocked by traffic conditions, which conditions were as visible to the motorman, if he was looking, as he should have been, as they were to the driver of the truck. It was the motorman’s duty when he saw this slow-moving truck, to reduce the speed of his car (Virginia Electric & Power Co. v. Vellines, supra), and approach the crossing so as to stop the car if necessary, in order1 that the truck might pass in safety. Virginia Electric & Power Co. v. Mitchell, 159 Va. 855, 164 S. E. 800, 167 S. E. 424. While it is true that the truck was on the right-of-way of the railway company, Ford was attempting to cross at a street intersection and had as much right on the crossing as the street car. He saw, or should have seen, that Ford, on account of the congestion of automobile traffic ahead of him which blocked his passage, was in a position of peril, from which at the moment he could not extricate himself. He could not go forward without coming into contact with the automobile traffic, and he could not, therefore, remove his *636truck from the railway track. In other words, that Ford was caught in a trap could plainly be seen by the motorman in ample time to have avoided the collision and save Ford’s life, and under the doctrine of the last clear chance it was his duty to have stopped his car, as he easily could have done, before it struck the truck. Instead of slackening his speed when he saw the truck go upon the crossing and exercising what would have been merely ordinary care under the circumstances, the motorman’s own evidence shows that as he approached the crossing he turned on the full strength of the electric current, had the car “wide open” and going at top speed, and ran down this truck without making any effort to apply his brakes until he was within thirty or forty feet of the point of impact. The observations of Judge Kelly in Virginia Railway & Power Company v. Smith & Hicks, 129 Va. 269, 105 S. E. 532, 534, seem toi me to be pertinent here, when he said:
“It is quite conceivable that a motorman might have the right-of-way (as did this motorman) and yet see, or be in a position to see, that unless he slackened his speed or stopped his car a collision with a vehicle about to cross ahead of him would be inevitable. In such a case, if the discovery of the inevitable was made, or ought to have been made, before it was too late for him to slow down or stop, he would have the last clear chance to avoid the injury, and the street car owner would be liable, regardless of the fact that the1 negligent conduct of the driver of the vehicle precipitated the situation and continued up to the moment of impact. This was the essential, though not actually expressed, holding in the Meyer Case [117 Va. 409, 84 S. E. 742], and is here one of the views which the jury might have taken of the evidence.”
In McNamara v. Rainey Luggage Corporation, 139 Va. 197, 123 S. E. 515, 518, it is said:
“And upon the principle that one will be charged with notice of that which by ordinary care he might have known, it is held that if either party to an action involv*637ing the questions of negligence and contributory negligence should, by the exercise of ordinary care, have discovered the negligence of the other after its occurrence in time to foresee and avoid its consequences, then such party is held to have notice; and his negligence in not discovering the negligence of the other under such circumstances is held the sole proximate cause of a following injury.”
In Sherman & Red. on Neg. (5th Ed.), section 99, it is said:
“The principle is that the party who had the last opportunity of avoiding the accident is not excused by the negligence of any one else. His negligence, and not that of the one first in fault, is the sole proximate cause of the injury.”
The negligence of the plaintiff does not constitute a bar to recovery if, after the plaintiff’s peril is, or ought to be, discovered, the defendant had a last clear chance to avoid the injury. Virginia Railway & Power Co. v. Cherry, 129 Va. 262, 105 S. E. 657.
Applying the foregoing principles to the facts of the instant case, it seems to me plain that the doctrine of the last clear chance is applicable, or at least the question of whether the defendant saw, or by the exercise of ordinary care should have seen, the plaintiff’s peril in time to have stopped his car and avoid the injury, was a question which is concluded by the verdict of the jury in the plaintiff’s favor.
It is further held that Ford was also negligent in failing to get out of the truck in time to save his life. While it is useless to discuss that question if the doctrine of last clear chance applies, it seems pertinent to enquire just at what time in his passage across the railway track this alleged act of negligence on Ford’s part took place. The evidence shows that when he started across the track the street car was 670 feet away, and after he had gotten on the track, both Ford and Driscoll looked and the car was then 335 or more feet away. It cannot justly be said that *638Ford was negligent in not getting out of the truck until he realized that the street car was not going to stop, as he had a right to assume it would do. How can the court say as a matter of law when Ford realized or should have realized this ? It seems to me any answer to the question would be too speculative and conjectural to be considered. Of course, if he realized his danger in time to go through the procedure of opening the door and scrambling out of and away from the truck, he was negligent in failing to do so. The most that can be said is that the question is one for the determination of the jury, and is not within the province of this court to determine as a matter of law.
For the foregoing reasons, I think the judgment of the lower court should be affirmed.