(dissenting).
I concur fully in the conclusion that the plaintiff failed to make out a case for the jury, but I do not agree that one was made out by defendant’s evidence. The majority of the court finds that the jury could infer from the testimony of defendant’s witness Anderson that Anderson was at- the east side of the intersection of Holdrege and Twenty-First streets when he first saw the truck in which the plaintiff was riding. It is demonstrated that the distance was at least 108 feet from there to the point of collision, and the conclusion is that Anderson could have stopped in that distance if he had tried as hard as he ought to — at least the jury could so find. I think the only" fair inference from Anderson’s testimony is that he was only from 25 to 40 feet away from the plaintiff’s car when he first saw it, and did not have time to stop before the collision. He so testified both on direct and cross examination very positively, and that he immediately slammed on his brakes, and the skid marks on the frosty pavement corroborated him. If that were all of his testimony, of course there would be no difference of opinion here.
What happened, however, was this: Anderson was not in Lincoln when he gave his testimony, but some 1,500 miles away in, Seattle, Wash. He could not remember “the location and distances of the station grounds, driveways and streets” about the scene of the accident, and said so. He had it perfectly clear in mind just exactly how the accident happened, the sudden looming up of the truck 25 to 40 feet in front of him, the immediate instinctive slamming on of his brakes, and the crash, but not the map of the location; and there was nothing unnatural about that. Equally according to nature the lawyer examining him for the plaintiff would not let the matter rest that way. So the lawyer drew up a map of what and where he imagined the physical things like the oil stations and entrances and curbs and streets and intersections were thereabouts. Doubtless with the best intentions in the world his map was utterly false and misleading. Particularly it showed the point of collision at the entrance' to the oil station to be 25 to 40 feet (and a car length) away from the east line of the street intersection. Now solely on the basis of that false map the lawyer got Anderson to say that he was at the intersection when he saw the plaintiff’s ear and peril, and as the examination of the witness proceeded there were drawn on the false map two squares to represent automobiles and a line between them to indicate distance marked “25 to 40” (meaning that the cars were 25 to 40 feet apart when Anderson saw the plaintiff), and on this map the tail end of Anderson’s car was indicated to be right at the east line of the street intersections.
It is from this slip in Anderson’s testimony so occasioned that we let the jury infer he contradicted himself on the question of what room he had to stop in. We have the true map before us, and we see that it is really 108 feet from the intersection to the point of collision, and so we say the jury could conclude that the 25 to 40 feet Anderson so positively remembered and swore to is false, and the truth to be gotten from his testimony is that he was 108 feet away and just went ahead for 108 feet and smashed up his own and the plaintiff’s car when he did not need to. It is true there was expert testimony that a car going at the speed Anderson estimáted *173his car to be going could be stopped by application of the brakes a matter of 8 feet quicker than Anderson says his car was stopped by the collision. This collision took place early in the morning, when there was frost on the ground, and the ear skidded some. The seeming contradiction in Anderson’s testimony and this testimony together amount to no more than a mere scintilla of evidence against him.
My reason for dissent is -that it seems to me there is a misapplication of the last clear chance doctrine. That humane doctrine has been beneficent in railroad collision eases. It doubtless has its place in eases of automobile collision, but not where its application shocks common sense as it does here. Auto drivers know that collision between their cars imposes mutual perils. They all naturally and instinctively try to escape it when they see it imminent. We ought not to assume or justify a jury in assuming that Anderson was inhumanly void of the instinct-to save himself and his ear. There is no persuasive proof of it. Of course he tried to stop his car when he saw he was going to smash. There is no real doubt of it. Plaintiff’s poverty availed for him against the chain stores and outweighed the evidence. A doctrine that is very wise and good has, in my humble judgment, been turned to upset good sense. This court ought to assert its necessary power against a wrong verdict.