dissenting.
The evidence for plaintiff, accepted by the jury, convicts defendant of negligence. This negligence was the failure to keep a proper lookout for other traffic while operating a street car for more than 125 feet on a business street in the city of Norfolk. Defendant seeks to avoid the consequence of its negligence by assuming the burden of establishing contributory negligence of plaintiff. Its first contention is that plaintiff violated a city ordinance in attempting to make a “TJ” turn between intersections. It is correctly held in the majority opinion that this violation of the ordinance was not a contributing cause to the collision.
*66The statement in the majority opinion that plaintiff is not entitled to recover for the resulting damages to his autombile because he failed to get out and push it off the tracks, imposes an unreasonable duty upon operators of automobiles oh streets -within corporate limits. If this doctrine is carried to its logical conclusion, the moment an automobile becomes stalled on a street car track in any city, the operator will be compelled to get out and staid shoving. The practical effect of such a doctrine is equivalent to a license — certainly immunity from liability — to operators of street cars to run into automobiles so stalled. Street cars are not entitled to the exclusive use of streets. Their rights are co-extensive with other members of the traveling- public.
"When anyone causes an obstruction to be placed on a street or a highway, it becomes the duty of such person to use ordinary care and diligence to remove the obstruction. No engine is so perfect in performance but that it fails to operate at some time or other, usually without negligence on the part of the operator. When plaintiff’s automobile stalled on the tracks, it was his duty to use ordinary care to move the automobile, then an obstruction, on the tracks. The automobile was equipped with a new starting battery. Plaintiff had had no previous difficulty with its operation. When it stalled on this occasion he attempted to start the engine by pressing on the starter button. Prom past experience he had reasonable cause to believe that the ignition system would work within a moment or two. It did not. The headlights were shining across the street on one side and the taillight on the other. If the motorman had exercised even a slight degree of care, he is bound to have seen an object as large as an automobile across the tracks in front of him. A' correct application of the doctrine of the last clear chance entitles plaintiff to recover for the damages .to the automobile.
The doctrine seems to have had its origin in Davis v. Mann, 19 Eng. Rul. Cas. 190. In that case, plaintiff had *67fettered a donkey and left him on the highway. The donkey was unable, because of his fetters, to get out of the way of an approaching carriage and was struck by defendant driving at a high speed. The court held that the negligence of defendant in driving his carriage was the proximate cause of the injury, and the negligence of plaintiff in leaving the donkey tied on the highway was the remote cause. If recovery is permitted for damages inflicted upon a donkey hobbled upon a highway, it would seem to me to follow that, under the same circumstances, recovery should be permitted for damages to an automobile stalled upon a city street. See Virginia E. & P. Co. v. Whitehurst, 175 Va. 339, 8 S. E. (2d) 296, and cases cited. Also see Chesapeake & O. Ry. Co. v. Hunter’s Adm’r, 120 Va. 699, 91 S. E. 181.
The finding of the jury was for plaintiff. This fact makes it imperative upon this court, as well as the trial court, to view the evidence as favorably to plaintiff as it can be done within the bounds of reason. The books contain many cases in which recovery has been allowed where pedestrians have misjudged the nearness or the speed of approaching street cars, as well as where operators of automobiles have misjudged the distance or speed of approaching'traffic. This court has repeatedly held that under such circumstances the jury was the proper tribunal to determine whether plaintiff was guilty of contributory negligence. The latest case so holding is Temple v. Ellington, post, page 134, 12 S. E. (2d) 826, the opinion in which was prepared by Mr. Justice Gregory and announced at this term of the court.
Neither defendant nor plaintiff had an exclusive right to use of the street. Each owed the other the duty to use ordinary care and caution to prevent injury. It became the duty of plaintiff to use this degree of care to remove his automobile as an obstruction from the street. He was pursuing one method of performing this duty; namely, trying to start his engine. ‘ It was also his duty to use ordinary care and caution for his own *68safety. Who can say with mathematical precision just when he should cease to perform one duty and begin to perform another? A fair inference from his testimony is that when he realized that the street car was increasing its speed and not checking it as it approached him, he attempted to get out of the automobile and off the tracks, leaving his property to the tender mercies of defendant whose street car was approaching at increasing speed. The attempt to get off the tracks was hindered by his overcoat which was caught in some part of the door of the automobile. His statement is that he would have gotten entirely out of danger 'if his movement had not been checked by his coat.
• Under these circumstances, the question of contributory negligence should be settled by a jury.
The difference in use, speed, weight, control and roadbed of a street car operated on the streets of a municipality and of a train operated by steam on a private right-of-way are so obvious that the rules applied to accidents on one should not necessarily be applied to accidents on the other. The majority opinion repeats that oft-quoted expression: “No one can be allowed to shut his eyes to danger in blind reliance upon the unaided care of another without assuming the consequences of the omission of such care. ’ ’ The trite expression contains a true principle. It was used by Judge Harrison in Virginia & S. W. Ry. Co. v. Skinner, 119 Va. 843, 847, 89 S. E. 887, in reference, to a traveler injured by a steam railroad at a grade crossing. There is another principle which should not be ignored: namely; no motor-man or his master can be permitted to shut his eyes and run his street car down the tracks on the streets of a municipality in blind - reliance upon other travelers getting off the tracks as he approaches without assuming full consequence of such conduct.
Street- car tracks in a city are not proclamations of danger ■ as' are the tracks-of steam railroads in rural sections;. -Vehicles, are permitted to cross the former in *69plain view of approaching cars without the operators of such vehicles being guilty of negligence as a matter of law. The negligence of a person going upon the tracks of a street car does not become negligence as a matter of law until the approach of the street car is coupled with some superadded fact that renders it obviously dangerous to a person of ordinary prudence. The super-added fact in the case now under consideration did not make danger obvious until it became apparent that the street car was increasing rather than diminishing its speed as it approached the stalled automobile. It cannot be said that the plaintiff shut his eyes to danger. As soon as he perceived that the operator of the street car was not going to perform his duty to check the speed and stop the ear, he immediately attempted to get off the tracks. He misjudged the speed of the street car or its nearness to him. Whether his conduct under such circumstances was negligent should be determined by a jury and not by a court. As the question was submitted to a jury who decided the issue for plaintiff, I think the verdict should be reinstated and judgment for him entered thereon.