(dissenting in part). — I do not dissent from the final word of the majority opinion, but there is much of such opinion in which I can not concur. I only care to specify and discuss the seventh, ninth, and tenth divisions of such opinion.
I will pass the seventh division for last consideration, and will consider first the ninth division of such opinion. This involves a discussion of the doctrine of the “last clear chance.” Our previous decisions are not wholly consistent in their discussion of this doctrine. Special attention was given to this subject in the recent case of Bourrett v. R. R. Co. (Iowa) 121 N. W. 380. The pronouncement made in the present majority opinion is quite inconsistent with the holding of the majority opinion in the Bourrett case, and creates further complication in our holdings on *209that subject. Briefly stated, the holding of the majority opinion in the Bourrett case was that the doctrine of last clear chance involves the question, not of comparative negligence, but of proximate cause. The theory of the application of the doctrine is, as there set forth, that the subsequent negligence of the defendant became the proximate cause of the injury, and that the previous negligence of the plaintiff was therefore not a contributing agency. Such negligence of the defendant is sometimes designated as “negligence after negligence,” or “subsequent negligence.” If the previous negligence of the plaintiff is no part of the proximate cause, then it is not contributory, and it is an inaccuracy of speech to call such negligence “contributory negligence.” This is the substance of the holding in the Bourrett case. The analysis worked out in that case was that the liability of the defendant arose under this doctrine by reason of its negligence after the previous negligence of the plaintiff had ceased to operate, and because such previous negligence could not be deemed a part of the proximate cause. If this is a correct analysis, then it can not be said that a plaintiff may recover under this doctrine, even though his contributory negligence existed up to the moment of the accident, because if such negligence was no part of the proximate cause, it could not be contributory.
The position taken by the majority opinion at this point is a substantial quotation from the casé of Powers v. R. R. Co., 115 N. W. 496 (Iowa). It is overlooked, however, that a rehearing was granted in that case, and that a subsequent opinion was filed therein which entirely abandoned the position upon which the majority opinion now rests. See 143 Iowa, 427. In the subsequent opinion it was held that the doctrine of “last clear chance” had no application to the case. I quote the third division of such opinion, which is as follow: “The motion for new trial also raised the question whether there was not such evidence in the record as to require an instruction to the jury, as to the *210doctrine of the last fair chance. Under the rule announced in the recent case of Bourrett v. Chicago & Northwestern Railroad Company (Iowa) 121 N. W. 380, the plaintiff was not entitled to a submission of the question of defendant’s liability on the principle that defendant’s employee should have discovered, and might have averted, the injury to plaintiff, notwithstanding plaintiff’s contributory negligence, if the contributory negligence of the plaintiff continued up to the very moment of his injury. Without elaboration, it is sufficient to say that, under the record as presented, the court was not bound to submit to the jury the question of defendant’s liability under the doctrine of the last fair chance. What has been said in the case just cited sufficiently indicates the views of the court as applied to the case before us. The duty of the defendant’s employee to avoid the injury to the plaintiff approaching its track was not greater than the duty of the plaintiff to avoid injury from the approaching car, 'and these duties were concurrent and continuous up to the moment of the accident. If it should be found by the jury that plaintiff was guilty of contributory negligence in failing to look -out for the approaching car before he stepped upon the track, then the defendant could not be held liable for negligence of its employee in failing to avoid injury to plaintiff at that time.”
I find nothing in the cases cited in the majority opinion which would justify us in holding that the tenth instruction of the trial court was erroneous. The Purcell case, 109 Iowa, 628, was a case where the injured party had by his own negligence ventured upon a bridge. When his danger became imminent, and apparent to the engineer, he was helpless to save himself, except by jumping from the bridge. Such a situation is covered fully by our holding in the Bourrett case. The negligence of the engineer arose after the negligence of the injured party had spent itslf. The Kelly case (118 Iowa, 390), was one where *211the injured party was a section hand, and was engaged in driving spikes upon the track. The morning was cold, and his cap was pulled down over his ears. He was not aware of the approach of the train, and the .evidence tended to show that this fact was known to the engineer in time to have protected him. It was held that his failure to discover his danger would not necessarily defeat him. Whether in this class of cases the liability of the defendant should be predicated upon the doctrine of last clear chance, or upon the theory of willful or wanton injury, is one of the questions upon which there is much diversity of opinion in the authorities. In the Kelly case this court did not in terms specify the theory upon which the liability was sustained. The opinion in the case recognizes a distinction between the ease then under consideration, where the injured party was already in the place of danger, when discovered, and that class of cases where the injured party was not in a place of danger when observed by the trainmen, but negligently proceeded into the danger zone at such time and place when it was too late for the trainmen to protect him. In the latter class of cases it is usually •held that the trainmen are not ordinarily bound to antici- ,. pate that such a person will proceed into the danger zone and the duty of the trainmen to stop a train does 'not arise until the peril of such person is apparent or imminent. In such a case trainmen are hot required to stop their train by the mere fact that they may see persons near the track outside the zone of danger, even though they be approaching such zone of danger. In the case at bar the plaintiff was driving toward the crossing. The front feet of his horses had but just reached the main track as the train came upon him. He turned them to one side, and the side of the passing train brushed down horses and wagon. It is manifest, therefore, that he had been in the danger zone for only a moment before the collision.
The Doherty case, 137 Iowa, 358, does not support *212the majority opinion. It was there held that the doctrine of last fair chance had no application to the case, and the judgment below was reversed on that ground. I quote from the opinion as follows: “In this situation of the evidence there was no room for application of the doctrine of the last fair chance. That doctrine can have application only in the cases where it is made to appear that the negligence of the defendant culminating in the accident arose after the discovery of the ' position of danger in which plaintiff, by his own negligence, had placed himself. This is upon, the theory that under such circumstances the negligence of defendant, and not the prior act of negligence of plaintiff, must be regarded as the proximate cause of the accident. . . . It is no doubt true, by the great weight of authority, that in the case of steam railways operated over private ways there can be no recovery for injuries sustained by one negligently exposing himself to danger, except on proof that, after being actually discovered, the railway employees might have stopped the train, and negligently failed to \ do so. As the proposition is put in some of the cases, the injury inflicted, to be recoverable for, must appear to have been wanton in the sense that the person in charge of the train, after being made aware of the danger, and having the means at hand by the use of which he might have prevented the accident, negligently failed to adopt or make use of such means. But in this state, as in many of the other states, the rule applicable in steam railway cases is departed from when dealing with accidents arising out of street railway operation, to the extent, at least, of holding that proof of actual knowledge of the position of danger of the party who suffers injury is not in all cases required.” The case above quoted from was a street railway case.
The Barry case, 119 Iowa, 62, was also a street railway case. It was held that there was evidence tending to show that the motorman did see the deceased in the place *213of danger in time to haveCiJyoided his injury. Turning to the ease at bar, it is veryvj$.oubtful in my mind that the plaintiff was entitled,td an instruction at all on the doctrine of last clear chánce. Assuming that the engineer saw him for some distance before the engine reached the crossing, he was not in a place of danger at that time. He was approaching the crossing, it is true. So was the train. I find nothing in the evidence to charge the engineer with knowledge that the plaintiff would undertake to cross the track in front of the train until he drove his team into the danger zone. Up to this time at least, the engineer had the right to presume that the plaintiff would stop and give the‘train the right of way over the crossing. The plaintiff can invoke the doctrine of last clear chance only upon the theory that, after his intention to cross the track ahead of the train became apparent to the engineer, such engineer, in the exercise of ordinary care, could have stopped his train. In view of the new trial to be had I will not discuss that question of fact. Assuming that the plaintiff was entitled to an instruction on the subject, it seems to me that instruction No. 10, given by the trial court, was applicable to the evidence, and was in accord with the rule announced in the Bourrett case.
II. I can not concur in division 10 of the majority opinion. This division deals with instruction No. 11, given by the trial court. The instruction is set out in full in such division, and I will not repeat it. I do not think the instruction is amenable to the criticism which is made upon it, either as to its substance or form. The substance of this instruction is that, if by the exercise of ordinary care plaintiff could have avoided the collision by stopping his team after he heard the danger signal and saw the ■approaching train, it was his duty to stop it. As an ab-tract proposition, this sounds to me like elementary law, and yet this is the very point in which the instruction is *214criticised. Surely, if the plai(Biff saw the approaching train in time to stop by the exerci*of ordinary care, he was as much bound to stop as was the eJfcneer who saw the approaching team. There is no room^in such a case for the application of the doctrine of last clear chance. It is also true in such a case that the engineer might properly assume that the plaintiff would avoid the collision, and that he might act upon such assumption until “it was made evident to him that plaintiff was about to come into a place of peril in spite of the warning.” This instruction does not assume to determine plaintiff’s contributory negligence' as a matter of law upon the evidence, but it holds him only to the exercise of ordinary care. It requires the jury to determine whether ordinary care after the plaintiff saw the approaching train would enable him to avoid .a collision by stopping his team. This proviso disposes also of the suggestion of “sudden peril,” which is made in the majority opinion. Ordinary care was the measure of plaintiff’s duty at all times. What would constitute ordinary care would vary and depend upon the circumstances surrounding him, including “sudden peril” or other distracting circumstances, and there is nothing in the instruction complained of which excludes the consideration of such circumstances by the jury in determining the question of ordinary care.
III. In the seventh division of such opinion the eighth instruction of the trial court is held to be erroneous. In this instruction the trial court instructed the jury that it was incumbent upon the plaintiff to prove that “he was free from all negligence on his part that caused, or in any manner contributed to, his injuries, as explained later in these instructions.” It is held that plaintiff was not required to negative all negligence, and that the instruction was therefore erroneous. This holding of the majority opinion has support in the case of Jerolman v. R. R. Co., 108 Iowa, 177, and my criticism is directed pri*215marily to the holding in ttai case. The holding in that case is so clearly ont of 'ln^pvith onr other cases that it has never been expres^| followed until now, and I think it ought to be franklj^verruled. The instruction under consideration in the Jerolman case was that the plaintiff must show herself free from “all negligence” which contributed to her injury. It was said in the opinion that this imposed, upon the plaintiff a higher degree of duty than ordinary care. It was conceded therein that “any want of ordinary care, however slight,” if it contributed to the injury, would defeat the plaintiff’s cause of action. But it was argued therein that “slight want of ordinary care must not be confused with slight negligence.” To my mind the reasoning at this point was not sound.. It is a truism to say that the plaintiff must prove freedom from contributory negligence. Freedom from contributory negligence implies the exclusion of all contributory negligence. “Want of ordinary care” is the stereotyped definition of negligence when ordinary care is the measure of duty imposed. Negligence is want of ordinary care. Want of ordinary care is negligence. In the Jerolman case it was held that it would be proper to instruct that the plaintiff must show freedom from any want of ordinary care. “All negligence” and' “any want of ordinary care” are equivalent under our stereotyped definition.
In the case of Root v. R. R. Co., 122 Iowa, 469, the trial judge (the late Justice Bishop, then on the trial bench) evidently undertook to conform to the holding in the Jerolman case. He instructed the jury that it was incumbent upon the plaintiff to prove that she did not by her own negligence contribute “in any material degree to her own injury.” This instruction was condemned as contrary to previous authorities. No reference however is made in the reversing opinion to the Jerolman case. In Camp v. R. R. Co., 124 Iowa, 238, another trial judge instructed the jury that it was incumbent upon the plain*216tiff to show that he was not-“to any material degree negligent himself.” This phraseology was distinguished from that used in the Boot case, and the instruction was sustained on the authority of the Jerolman case. In Rietveld v. R. R. Co., 129 Iowa, 249, the Jerolman case is cited, among others, but it is in no sense followed on this point by any holding in the opinion. Indeed the language used in this opinion is contradictory, rather than confirmatory, of the Jerolman case in this respect. It is said therein: “Of course the plaintiff’s negligence must be such as contributes proximately to his injury; but, if it does so in whole or in part, in any manner or to any degree, there can be no recovery on his behalf.” The citation of the Jerolman case is made in support of the quoted proposition. The Jerolman case was decided ten years ago, and has never since been squarely followed on this point until now. The attempt to follow it in the Camp case resulted in a superfine distinction between the holding in the Camp case, supra, and the reverse holding in the Root case, supra. It seems to me, therefore, that the Jerolman case ought to be regarded as out of line with the great body of our cases, and as hypercritical. I see no way to follow it consistently without the constant necessity of urging verbal distinctions where no practical distinction exists.
Some point is made in the Jerolman opinion of the fact that the trial court had not defined negligence. In the case at bar instructions 4 and 9 contain a sufficient definition of negligence as being want of ordinary care. That objection, therefore, is not applicable here. To that extent this case can be distinguished from the Jerolman case. I think the instruction of the trial court on this question should be sustained.