(dissenting). The facts of this case are somewhat in dispute, hut, accepting plaintiff’s statement as true, I cannot escape the conviction that his own negligence was responsible for the accident, and that this is nothing more nor less than an ordinary pedestrian crossing case in which the pedestrian failed to exercise his senses of sight and hearing; and, in passing, let me remark that the record shows that the pedestrian in this case had defective hearing.
Plaintiff says that he walked out into the street and did not see the automobile coming. That it was coming is evidenced by the fact that the collision occurred, and that the speed was. moderate is ■ not in dispute. His only reason, then, for not seeing, was that he did not look. Whether he was struck when in the middle of the street, or just prior to reaching .the middle, or wnen just beyond that point, is of no great importance, though on this question his own testimony should he given great weight. He says that “he was pretty near in the middle of the street.” I take this to mean that he had not. quite reached the middle. That defendant’s automobile was on the river side of the street, that is, the side from which plaintiff emerged, is also .testified to by Mr. Fabacher, plaintiff’s principal witness, who, on this point, says that at the time the defendant’s automobile struck Mr. Robichaux it was “on the river side.”
If, as plaintiff claims, there was another automobile between himself and the car which struck him, then he was negligent in crossing in front of that other car without making certain that on the other side there was no danger, because he should have borne in mind that any driver of another car on the other side could not see him any better than he could see the other car. Therefore, whether there was a car between him and the car into which he walked is of no importance, since in either event it was his negligence which was primarily responsible for the accident, and in either event his own negligence in not looking continued with each succeeding step, and this continuing negligence prevented the application of the doctrine of the last clear chance, since there was no time at which it can he said that it was no longer possible for him to have saved himself by the exercise of care. When defendant discovered the peril of plaintiff and turned to the left to avoid him, if plaintiff had been on his. guard, he also would have discovered defendant, and could have stopped or stepped hack and avoided the accident. The doctrine of the last clear chance'applies only when the injured party no longer has it in his power to avoid the final result. After .the ability to save himself no longer exists, then, if the other party can avert the accident, and fails to do so, he is liable under the doctrine referred to. It has been many times said that the doctrine of the last clear chance, which is a so-called exception to the rule of contributory negligence, “will -not he extended to cases where the plain*163tiff’s own negligence extended up to and actually contributed to the injury. To warrant its application there must have been some new breach of duty on the part of the defendant subsequent to the plaintiff’s negligence.” Jarrow v. City of New Orleans, 168 La. 992, 123 So. 651, 652. See, also, Castile v. O’Keefe, 138 La. 479, 70 So. 481; Harrison v. La. Western R. Co., 132 La. 781, 61 So. 782; American & English Encyclopedia of Law, (Supp.) vol. 2, p. 64, notes 4 and 5.
I therefore respectfully dissent.