concurring in result.
I agree with the majority opinion that the facts of this case do not justify the application of the doctrine of last clear chance and that, therefore, the verdict and judgment should not be sustained. I cannot, however, agree with the approach and reasoning by which that result is reached.
*722Almost thirty years ago it was apparent to this court that conflict obtained in decisions dealing with the doctrine of last clear chance. In the case of Gunter v. Southern Ry. Co. (1920), 126 Va. 565, 101 S. E. 885, in an exhaustive opinion, the scholarly Judge Burks, in recognizing such conflict, stated: “It may be that the previous decisions of this court do not seem to be in entire harmony on this subject * * *.”
This unsatisfactory state of the law has not been rectified, but has become more pronounced since that opinion was written. That is made certain by the observation of Mr. Justice Gregory in the recent case of Harris Motor Lines v. Green, 184 Va. 984, 992, 27 S. E. (2d) 4. He there said:
“We will not undertake to discuss or attempt to reconcile the cases in which the doctrine has been applied or withheld. This would be impossible because the cases are irreconcilable.”
With that statement I fully agree.
The opinion in Barnes v. Ashworth (1930), 154 Va. 218, 153 S. E. 711, also reflects the lack of harmony in these decisions. At the present time the conflict has attained the status of confusion and the principle, as now applied, is often blended with, if it does not actually amount to, adoption of the comparative negligence rule.
This conflict and confusion, I am convinced, is due to the failure of the court to recognize that the doctrine of last clear chance necessarily presupposes a situation in which both plaintiff and defendant are negligent, i. e., a pure and simple case of negligence on the part of defendant and contributory negligence on the part of plaintiff, which, upon purely legalistic principles, would result in a finding favorable to defendant. However, for just and humane considerations and to avoid that harsh and inevitable result, the law allows two types of plaintiff to recover, notwithstanding their contributory negligence, if and only if certain circumstances are present. These circumstances are: (1) When a plaintiff has been and is negligent but is in a helpless con*723dition immediately preceding the mishap and therefore unable to avoid it, he may nevertheless recover if the defendant saw or should have seen him in time to avoid the collision by the use of reasonable care, and (2) when a plaintiff, who, because of his negligence, is in a situation of danger but can readily help himself, yet is negligently inattentive and unaware of the surrounding circumstances of peril, he may recover if the defendant saw him or was apprised of his presence and realized, or in the exercise of reasonable care, should have realized his danger in time to avoid the mishap.
That these two distinct classes of parties plaintiff exist under this doctrine is clearly recognized and their rights fully explained in sections 479 and 480 of the Restatement of the Law of Torts. This court, has, however, in my opinion, failed to follow that line of demarcation which was set out and announced in Richmond, etc., Ry. Co. v. Yeamans (1890), 86 Va. 860, at p. 869, 12 S. E. 946.
Though she was violating the statute and negligent down to the moment of impact and at all times readily able to remove herself from the zone of danger, plaintiff insists that she is entitled to recover if in the exercise of ordinary care defendant should have seen her and realized or should have realized that she was in a position of peril and oblivious of her danger and he thereafter had opportunity to avoid the mishap by the exercise of ordinary care. That, she asserts, is a fair statement of the doctrine of last clear chance as it has been liberally applied by this court.
Chief among the cases relied on is Herbert v. Stephenson, 184 Va. 457, 35 S. E. (2d) 753, and it may well be. I find its facts so strikingly similar to those in the case at bar that they need not be set forth in detail. It is sufficient to say that there the plaintiff was not helpless but negligently inattentive. The defendant did not see him until too late to avoid striking him. The plaintiff could have saved himself from injury by the exercise of ordinary care at any time before the accident, yet because there was a duty *724upon defendant driver to keep a proper lookout which he failed to do, the court applied the doctrine because the defendant should have seen this negligently inattentive plaintiff. At page 462, it is said:
"* * * whether, under all the circumstances of the case, the defendant, in the exercise of the care incumbent upon him saw or should have seen, the plaintiff in time to have avoided striking him was for the jury after having been properly instructed.”
That opinion then quotes with approval the following paragraph from Dobson-Peacock v. Curtis, 166 Va. 550, 186 S. E. 13:
“* * * We should bear in mind that a defendant is liable under the last clear chance doctrine both where he actually sees the peril of the plaintiff and fails to exercise ordinary care to avert the injury, and also where the defendant being under a duty to keep a proper lookout for the plaintiff, by the exercise of ordinary care, should have seen the plaintiff’s peril in time to have avoided the injury by the use of ordinary care.” (184 Va. at p. 463.)
In my opinion, the Herbert Case was erroneously decided and should be overruled. I find no more reason for the application of the doctrine of last clear chance there than in the case at bar. The present majority opinion, upon distinctly similar facts, refuses its application and I consider it to be in obvious conflict with the views expressed in the former case.
Otherwise stated, if the doctrine of last clear chance as applied in the Herbert Case is still the law of Virginia, then the verdict and judgment in the case at hand should not be disturbed. If it is the intention of the court to now adhere to the views expressed in the Herbert Case, then I think this case should be affirmed. But in any event, the present opinion fails to clarify the existing confusion and, in my opinion, adds another conflicting decision to the unsatisfactory situation that now obtains.
With all inferences resolved in plaintiff’s favor, it must *725be recognized that by the exercise of reasonable vigilance or care, she could have avoided the collision. She was never, for a moment, in helpless peril—a typical example of which was dealt with in the very recent case of Washington, etc., Railroad v. Taylor, 188 Va. 458, 50 S. E. (2d) 415. Though decedent’s helpless peril was there caused by his own negligence, he was, immediately prior to the accident, unable to avoid it and the defendant, in the exercise of ordinary care owed by it, not to plaintiff, but to persons using or upon the track in some way as was to be reasonably expected, should have discovered his situation of danger and thus had reason to realize his helpless peril, and thereafter a reasonable opportunity existed to avoid the mishap.
Decedent fell within that class of persons, i. e., a negligent but helpless person—to whom the defendant is hable if he saw 'or in the exercise of reasonable care should have seen him in time to avoid the mishap. Atlantic Coast Line R. Co. v. Gates, 186 Va. 195, 42 S. E. (2d) 283.
To the other class belongs Clay v. Bishop, 182 Va. 746, 30 S. E. (2d) 585. Plaintiff, with his back to traffic and leading a horse along the right side of the highway, was plainly visible and seen by defendant as he approached from the rear in his truck. Being apprised of plaintiff’s presence in front of him, he realized or ought to have realized his position of peril and his apparent oblivion thereto in time to have, in the exercise of reasonable care, avoided striking him. He therefore had the last clear chance.
In the present case, plaintiff, enjoying the full exercise of her faculties, could, at all times, by the exercise of ordinary care, have relieved herself of .the danger of being struck, and it is not shown that defendant knew of her presence or situation and therefore realized or had reason to realize that she was inattentive and so unlikely to discover her danger and avoid injury. She belongs to that class of plaintiffs, i. e., a carelessly inattentive person to whom the defendant is liable only if he knew of her presence and realized or should have realized her peril in time to have avoided the collision.
*726On the facts of this case, to entitle plaintiff to an instruction under the doctrine of last clear chance, it was incumbent upon her to establish that she was not only inattentive to her perilous position in which she had knowingly placed herself, but that defendant saw her and realized, or should have realized, her inattentiveness and danger and then failed to use reasonable care to avoid the collision. Hooker v. Hancock, 188 Va. 345, 49 S. E. (2d) 711.
After defendant saw her on the wrong side of the road, the evidence fails to disclose any means by which he could have avoided striking her. Until the moment of impact, she was afforded and enjoyed as good an opportunity to avoid the collision as did defendant. Each being unaware of the other’s presence, but under equally positive duty to keep an efficient lookout for pedestrian and vehicular traffic on the street, and the plaintiff at no time being helpless, an element for the application of the last clear chance is lacking, namely, knowledge on the part of defendant of the presence of plaintiff, thus affording an opportunity, in the exercise of reasonable care, to realize her danger in time to avoid the injury.
Through failure to adhere to any certain formula or principle (but to decide each case on its shaded facts), the circumstances under which the doctrine has been applied or withheld in many of the former decisions of this court are so varied and illusory as to render its correct use by the trial courts most difficult if not impossible. The serious difficulties now encountered by the profession and those courts in the practical application of the doctrine is not rectified or alleviated by that continued fusion and confusion with the rule of comparative negligence. The many conflicting decisions on the subject and the statement in this majority opinion that, “The evidence in fact shows that her negligence was more responsible for the accident than was his;” (emphasis added), is abundant proof that confusion with the rule of comparative negligence obtains and sufficient evidence of its deplorable result.
*727Not only is the statement in the majority opinion, which I have quoted above, proof that confusion with the rule of comparative negligence exists in Virginia, but we also find in that opinion an attempted distinction between Herbert v. Stephenson, supra, and the case at bar. It seems to me that the distinction sought to be made, i. e., a plaintiff walking on the shoulder of the road with his back to traffic, as in the Herbert Case can recover, but a plaintiff walking on the edge of the paved portion of the highway with his back to traffic, as in the present case, cannot recover—is rather farfetched. I think the majority opinion, in attempting to differentiate the facts of the two cases, really says that the plaintiff in the case at bar was a little more negligent than the one in the Herbert Case. However, the majority opinion tries to explain this questionable incongruity by stating that in the Herbert Case it was a jury question whether or not the plaintiff’s negligence was remote, and in the case at bar, that the plaintiff was negligent down to the moment of impact. In both cases we have negligent plaintiffs who are physically able to help themselves, and the question that should be raised is not whether plaintiff or defendant is the' more responsible, but did defendant see plaintiff and realize, or in the exercise of reasonable care should have realized, his position of peril and reasonably attempted to avert the collision.
In view of the decision in Crouse v. Pugh, 188 Va. 156, 49 S. E. (2d) 421, which states that it is a violation of the statute and thus negligence in walking on the shoulder of the road with one’s back to traffic, compare this majority opinion with that in Herbert v. Stephenson, supra.
No good purpose could be served by reviewing the many cases in which the doctrine of last clear chance has been applied or withheld in this jurisdiction. That has been done at length and with care in the Virginia Annotations to the Restatement of the Law of Torts, compiled by William T. Muse, now Dean of the University of Richmond Law School. They are enumerated and discussed under sections *728479 and 480 in that Annotation, which constitutes a Supplement to the Restatement of the Law of Torts.
It is sufficient to say that the Restatement of the Law of Torts recognizes the two classes of plaintiffs, and the set of circumstances under which each is entitled to invoke the doctrine. The text of 38 Am. Jur., “Negligence”, sections 223 and 224, pages 908 and 909, also sets forth this distinction. The Virginia Annotations point out the failure of the Virginia decisions to adhere to this line of demarcation and the resultant conflict and confusion.
It is my view that this court should recognize the two different classes of parties plaintiff, and by doing so, I am convinced that future conflict would be avoided.
I concur only in the result reached in the majority opinion.
Mr. Chief Justice Hudgins and Mr. Justice Spratley join me in this opinion.