(dissenting). — I am unable to concur in what is said in the second paragraph of the opinion concerning the doctrine of last fair chance. It may be doubtful whether defendant, even if it could have discovered plaintiff’s peril, was in such a situation that it should be denounced as negligent in not so stopping its train as to have avoided the injury; but, in my opinion, it should not be held that actual knowledge of plaintiff’s peril was essential, in order to cast upon defendant the onus of exercising ordinary care for his protection thereafter. The majority are mistaken, as I think, in saying that this court is committed to the doctrine that actual knowledge is necessary, in order to render the defendant liable for subsequent negligence. It is not pretended that the proposition has ever been discussed by the court. Beliance is had on mere statements of the general rule, exacting knowledge, without inquiry, as to what is sufficient to charge the party complained of with knowledge.
In Keefe v. Railway, 92 Iowa, 183, on which the majority mainly rely, the decedent was standing in the track, doing nothing save looking in the opposite direction, when the train, without a lookout, backed on him, and the court held that the doctrine of last fair chance was not applicable, and so for the obvious reason that if defendant was negligent in not discovering decedent until the collision the latter was equally negligent in not observing the approach of the train. In other words, the negligence of each continued up to the time of the injury, and, as said *587in the opinion, “to 'hol'd defendant liable for the failure of its employees to use due care to ascertain the danger Keefe was in, without regard to his negligence, is to make the defendant absolutely liable for its failure to exercise due care, and to ignore the doctrine of contributory negligence.” Whether actual knowledge, or such means of knowledge as that actual knowledge should be inferred, was essential was not discussed in that case; the court being content merely to remark that “it is not sufficient that means of knowledge were available and in use, except in exceptional cases,” without pointing out the exceptional cases. In Morris v. Railway, 45 Iowa, 29, and Romick v. Railway, 62 Iowa, 169, the' peril was actually known; while the proposition was not considered in Newman v. Railway, 80 Iowa, 672, save in saying the rale had no application to the case, which was one of concurring negligence. Nor was it discussed in Brown v. Railway, 92 Iowa, 413, save in inquiring whether there was evidence to justify an instruction that if an act was done after defendant’s engineer had discovered plaintiff’s negligence, and it could have been avoided, the company was liable. The excerpt from Orr v. Railway, 94 Iowa, 423, quoted in the opinion, is not open to criticism. Ferguson v. Railway, 100 Iowa, 741, was a case of contributory negligence. The rule was correctly stated in Purcell v. Railway, 117 Iowa, 667, for in that case decedent was a trespasser for whose protection defendant owed' no duty, save upon actually discovering his peril. See Earl v. Railway, 109 Iowa, 14; O’Keefe v. Railway, 32 Iowa, 467. In Oliver v. Railway, 122 Iowa, 217, the question was not touched; it being held that plaintiff was guilty of contributory negligence. In Dale v. Colfax Consolidated Coal Company, 131 Iowa, 67, it was said that actual knowledge was necessary, but this was mere dicta, not involved in the case, and' said in passing on the admissibility of evidence. In Barry v. Burlington Ry. & Light Co., 119 Iowa, 62, the *588court, speaking through McClain, I., who also prepared the opinion in the Dale case, after directing attention to the Keefe case and the Orr case, said: “But those cases, so far as they hold that the duty to exercise care to avoid injury to one who is guilty of contributory negligence in putting himself in danger arises only when the danger becomes actually known to the employees of the railroad company, do not relate to circumstances involving a duty to look out in general for the safety of others. The distinction between the care required in connection with the running of a railway train operated on a right of way, as to which the railroad company enjoys the exclusive right of possession, and the care which should he exercised in the running of a street car operated in the public streets of a city is manifest. Those operating a street car under such circumstances are bound to do so with regard to the safety of persons rightfully upon the public streets, for the street car track, notwithstanding its additional use, remains a part of the street. This distinction is well recognized by the authorities.” See, • also, Dougherty v. Railway, 137 Iowa, 258. The question is not discussed in Bruggeman v. Railway, 147 Iowa, 187.
A careful examination of the decisions relied upon by the majority discloses that the proposition has not been foreclosed in this state by any previous decision, but that, on the contrary, several opinions have announced the rule that actual knowledge is not essential when the injured person is at a place at which he has a right to be. The rule that contributory negligence will defeat recovery appears to have been first distinctly announced in Butterfield v. Forrester, 11 East, 60, though not then as a novel doctrine. Explanation of the ground thereof as a legal principle appears in subsequent decisions. Perhaps the gradual development of the law as new conditions arose accounts somewhat for the treatment of the rule in Davies v. Mann, 10 M. & W. 546, as an exception to the general *589doctrine of contributory negligence. Though often so referred to in the décisions, it is not now generally regarded as exceptional, but as the means of ascertaining whether defendant’s negligence is the sole proximate cause of the injury complained of. Indeed, the later text books seem to have rejected the designation of the rule as that of “the last fair chance,” which has the merit of being conveniently descriptive at least, and refer to it merely as defendant’s subsequent negligence. In the cited case, the owner of a donkey, who negligently turned it out upon the highway with its feet fettered, was allowed, notwithstanding his own negligence, to recover from .a person driving along the highway, who carelessly ran into and killed it. The ground of the decision, though not clearly expressed by the court, has been accurately stated as follows: “The party who last has a clear opportunity of ■avoiding the accident, notwithstanding 'the negligence of his opponent, is considered wholly responsible for it.” In Smith v. Railway, 114 N. C. 128 (19 S. E. 863, 923, 25 L. R. A. 287), the subject is fully discussed; the court concluding that: “It is simply a means of determining whether, the plaintiff’s negligence is a remote or proximate cause of the injury. Before the introduction of the rule, any negligence on the part of plaintiff which in any degree contributed to the accident was judicially treated as a proximate cause, and constituted contributory negligence which barred' recovery. . . . This was considered a harsh rule, as it left the plaintiff to bear all the damages, ■although he may have been but remotely, and consequently but slightly, in fault. The doctrine, however, was qualified by the ruling in Davies v. Mann, and it was determined that, although plaintiff was guilty of a want of ordinary care in contributing to the injury, yet this would not prevent him from maintaining an action, if the defendant might have avoided the injury by the exercise of ordinary care on his part.” A like statement will be found *590in. Nashua Iron & Steel Co. v. Worcester & N. R. Co., 62 N. H. 159.
When thus stated, it is apparent that the rule constitutes no exception to the general doctrine of contributory negligence, and does not permit one to recover in spite of contributory negligence, but merely operates to relieve the negligence of plaintiff, which would otherwise be regarded as contributory, from its character as such. This is accomplished by characterizing the negligence of defendant, if it intervenes between the negligence of the plaintiff and the accident as the sole proximate cause of the injury, and the plaintiff’s antecedent negligence as a condition or remote cause. If then the antecedent negligence of plaintiff be found merely a condition or remote cause, it can not be contributory, since it is well established that negligence, to be contributory, must be one of the proximate causes. Since the effect of the application of the rule then is to strip from the negligence of plaintiff the attribute expressed by. the' word “contributory,” it follows that there can be no liability for defendant’s subsequent negligence, unless and until it has been definitely determined that there has been some breach of duty on. the defendant’s part, intervening between the antecedent negligence of plaintiff and the accident. Manifestly, in order that defendant’s negligence shall be the sole proximate cause, the plaintiff’s negligence must have expended itself before the breach of defendant’s duty complained of; for if, notwithstanding defendant’s fault, plaintiff’s negligence continue to the instant of the accident, either the negligence of the parties is concurrent, or else plaintiff has had the last opportunity of avoiding the injury.
These views find support in Patterson’s Railway Accident Law, 91, where it is said that: “The rule has been misunderstood and misapplied. It means only that negligence upon the part' of plaintiff which bars his recovery from the defendant must have been a proximate cause of *591the injury, and that it is not a proximate, but only a remote, cause of the injury when the defendant, notwithstanding the plaintiff’s negligence, mighfi, by the exercise of ordinary care and skill, have avoided the injury. Thus stated, the rule is' consistent with the theory upon which the doctrine of contributory negligence is based, and furnishes no support for that of comparative negligence.” The same thought is expressed in Orr v. Railway, 94 Iowa, 423, where it is said that, when the rule is applied, “the plaintiff’s negligence is only the remote cause of the injury he sustains, and is not contributory negligence; second, contributory negligence is no bar to an action for wilful injuries.” Mr. Beach has considered the subject at great length in his work on Contributory Negligence, and is of opinion that the following principles cover every case in which a correct application has been made of the rule of Davies v. Mann; “(1) When the plaintiff’s negligence is only a remote cause of the injury he sustains, it is not contributory negligence, and he may recover; and (2) contributory negligence is no bar to an action for wilful injury.” Beach on Contributory Negligence, section 28. See Shearman & Bedfield • on Negligence, section 99; article on Doctrine of Last Clear Chance, by Geo. W. Payne, in 66 Cent. Law J. 215. See, also, Richmond Traction Co. v. Martin, 102 Va. 209 (45 S. E. 886); Ward v. Railway, 96 Me. 136 (51 Atl. 947) ; Kellny v. Railway, 101 Mo. 67 (13 S. W. 806, 8 L. R. A. 783.)
A clear statement of the rule, regardless of nomenclature, has seemed necessary before determining the controverted question as to whether, to render defendant liable, it actually must have known of plaintiff’s peril in time to have avoided the injury by the exercise of reasonable care. This court has frequently held that where there was such knowledge defendant will be responsible for the exercise of ordinary care. See Sutzin v. Railway, 95 Iowa, 304; Brown v. Railway, 92 Iowa, 408; Conners v. Rail*592way, 87 Iowa, 147; Morbey v. Railway, 116 Iowa, 84; Cooper v. Railway, 44 Iowa, 134. Will it suffice if defendant, by the exercise of ordinary care, should have discovered the peril to which plaintiff’s negligence exposed him, and have avoided injuring him? Bearing in mind that plaintiff’s negligence, to be regarded as remote, must have culminated before the injury, and that intervening his negligence and the injury defendant must have been guilty of some breach of duty then owing plaintiff, causing the injury, in older to create a' liability, it is maní fest that whether actual knowledge of plaintiff’s peril is essential necessarily depends on the nature of the duty due plaintiff. If he is merely a trespasser, or for some other reason the duty of observing him does not devolve on defendant, then evidently no obligation arises on defendant’s part until .his peril actually is discovered. O'Keefe v. Railway, 32 Iowa, 467; Earl v. Railway, 109 Iowa, 14. But the .rule is otherwise where a duty is imposed to exercise reasonable care to ascertain the danger, and ample means to- do so are available. Thus persons who travel over a highway or street crossing, or at places the public generally is licensed to pass, are not trespassers, and are where they have the right to be, and the railroad company owes them the active duty of keeping a lookout for them.- Black v. Railway, 38 Iowa, 515; Hart v. Railway, 56 Iowa, 166; Kinyon v. Railway, 118 Iowa, 349; Thomas v. Railway, 103 Iowa, 649; Booth v. Railway, supra.
And so of stock at a crossing. Wooster v. Railway, 14 Iowa, 593. In the last case the precise question was determined. Plaintiff was allowed to recover for injury to cattle at a highway crossing, although the person in charge of them was negligent; the court approving of an instruction that, if the company’s employees could have avoided the collision after the danger was, or, in the exercise of reasonable care, should have been, discovered, re*593covery could be had. This rule was subsequently approved in Barnard v. Railway, 133 Iowa, 185, and finds, support elsewhere, Denver, etc., Ry. v. Buffehr, 30 Colo. 27 (69 Pac. 582); Klockenbrink v. Railway, 81 Mo. App. 351; and Richmond Traction Co. v. Martin, 102 Va. 209 (45 S. E. 886). Indeed, no actual knowledge of the peril of the historic donkey in the highway was shown in the celebrated case of Davies v. Mann, 10 Mees. & W. 546, in which the rule is supposed to have originated; the failure to discover and avoid injury to him being the true ground of the negligence.
Beasonable means of knowledge is regarded as equivalent to .knowledge generally when there is -a duty to investigate, and this is no sound reason for not applying the rule to the doctrine of the “last fair chance,” . even though there may be cases to the contrary outside of this state.
In a note to Bogan v. Railway, 129 N. C. 154 (55 L. R. A. 418), will be found an exhaustive discussion of the doctrine of “the last fair chance;” the annotator concluding that the review of the decisions shows “a decided tendency on the part of the courts to apply the doctrine . . . to any omission of duty on the part of defendant, whether before or after the discovery of the peril in which the plaintiff or deceased had placed himself or his property by his antecedent negligence, if that breach of duty intervened or continued after the negligence of the other party had ceased.”
A perspicuous statement of the principle appears in Teakle v. Railway, 32 Utah, 276 (90 Pac. 402, 10 L. R. A. (N. S.) 486) : “There is much reason for the distinction that the railroad company should not be held liable in case of one, not a trespasser, exposed to peril through negligence, not only after the consequences of such negligence have been discovered, but which ordinarily could have been discovered, if there was a breach of duty *594continuing or intervening after the commission of the contributory negligence. In the one instance, the train operatives were not called upon to expect or anticipate the trespass or the presence of persons, and hence owed no duty of lookout or of giving warnings. In such case, no duty was imposed on them until the trespasser was discovered in a position of peril. In such case the liability of the company must solely depend, upon a breach of duty subsequent to the discovery. If, on the other hand, through a long usage or custom, the public has made a thoroughfare of the track in a populous city or thickly settled community, though not with any express authority, but under circumstances of an implied license, the train operatives are required to reasonably expect and anticipate the probable presence of persons on or near the track at such place; and there is^ consequently imposed upon the train operatives a duty toward such persons of a reasonable lookout. When, therefore, it is said that the railway company is liable in such case for an omission of duty on the part of the train operatives, not only after the consequences of the injured or deceased’s negligence have been discovered, but also for such an omission of duty, as, had it reasonably been performed, such consequences could ordinarily have been discovered, it necessarily implies the existence of a duty owing by the train operatives toward the injured or deceased person before, as well as after, the commission of the contributory negligence. In other words, before a person inflicting an injury can be charged with an omission of duty in failing to discover a perilous situation of another, there must be a duty owing by him to the injured or deceased person which, had it been performed with reasonable care, would have disclosed to him the exposed situation of the person receiving the injury.” See, also, supporting these views, Scoville v. Railway, 81 Mo., 434; Smith v. Railway, supra; Richmond Passenger & Power Co. v. Gordon, 102 Va. 498 (46 S. E. 772); *595Memphis St. Ry. v. Haynes, 112 Tenn. 712 (81 S. W. 374) ; Birmingham, etc., R. Co. v. Brantley, 141 Ala. 614 (37 South. 698); Meng v. Railway, 108 Mo. App. 553 84 S. W. 213).
Enough has been said to indicate that, according to reason and the weight of authority, the defendant’s liability for injury resulting from any act or omission on its part after the cessation of plaintiff’s negligence depends solely on whether such act or omission constituted a breach of any duty then owing to the plaintiff, and the nature of that duty, whether to keep a lookout at a particular place, or becausé in a particular employment or situation,, or having actual or implied knowledge of the peril, is not material, so long as the act or omission constitutes a breach of duty. It is unnecessary now to discuss when negligence of the injured party should be said to have culminated, but see Bruggeman v. Railway, 147 Iowa, 187; note to Dyerson y. Railway, 7 L. R. A. (N. S.) 132; French v. Railway, 76 Vt. 441 (58 Atl. 722); Consumers’ Brewing Co. v. Doyle, 102 Va. 403 (46 S. E. 391); Kolb v. St. Louis Transit Co., 102 Mo. App. 143 (76 S. W. 1050) ; Pickett v. Railway, 117 N. C. 616 (23 S. E. 264, 30 L. R. A. 257, 53 Am. St. Rep. 611) ; Houston & T. C. R. Co. v. Sympkins, 54 Tex. 615 (38 Am. Rep. 632); Texas & N. O. Ry. v. McDonald, 99 Tex. 207 (88 S. W. 201); Butler v. Railway, 99 Me. 149 (58 Atl. 775, 105 Am. St. Rep. 267).
The obligation of the employees of a steam railway company to keep a lookout.at the street or highway crossings is precisely the same as that of the employees of a street railway company to keep a lookout for pedestrians and others in the use of the streets of a city, for that those on the crossing or in the streets are where they have a right to be, and in my opinion there is no ground whatever for saying, as was held in Barry’s case, and others following it, that means of knowledge is sufficient to charge the *596company with knowledge of the'injured! party’s peril, and declining to apply the same rule in the case at bar.