On Petition for Rehearing.
Pee Cubiam.A rehearing is asked upon the grounds that the original opinion holds that the seventh instruction, given to the jury by the court, was not erroneous, and that a certain question propounded to the witness Shelby was erroneously held fi> be proper. Upon reference to said instruction it will appear that it attempts to- state the theory of “last clear chance.” It is claimed now, as in the original brief of appellant, that, the peril must be actually known to the motorman before he can be held negligent on that theory.
Upon this question, in 2 Thompson, Negligence (2d ed.), §1476, that author says: “There is scant propriety in admitting this doctrine in the case of steam railroads at places other than highway crossings, and at places where their tracks do not traverse the surface of public streets or highways. * * * But with respect to street railroads, where the public have the right to use the street, including that part of it on which the track is laid, in common with the railroad company, and where the railroad company is consequently bound to anticipate the rightful presence of men, women and children on its track in front of its cars, the sound and just rule must be different. * * 'x' It has the effect of absolving the street railway company from keeping that constant lookout ahead and around which, as already seen, the law demands of corporations which have received from the public a license to propel cars at a high rate of speed along the surface of the highway, in populous *478districts, which the public have a right to use in common with them.” So that if the instruction was not harmless, as stated in the opinion, by reason of the special findings, still the giving of it was not error.
As to the admission of the testimony of the witness Shelby, we do not deem it necessary to add to the original opinion.
Petition for rehearing overruled.