OPINION ON REHEARING.
Per Curiam:At the first hearing the argument related principally to the sufficiency of the evidence to support the findings and verdict. The specifications of errors did not assign error in the instructions. But ■error was specified in the order overruling a motion for a new trial and the brief called the attention of the court to the instructions excepted to. These exceptions were, however, overlooked in the opinion, and will therefore be considered now.
The instructions complained of relate to the doctrine of the last clear chance. One of them reads:
“If in attempting to make the crossing at which the injury is claimed to have been received the deceased was not in the exercise of ordinary care, then plaintiff would not be entitled to recover unless you believe from the evidence that the motorman could have avoided the accident by the use of ordinary care after he saw, or by the use of ordinary care might have seen, that the deceased was upon the track or was about to cross the track and was in danger of being struck by the car.”
This instruction is not in harmony with the opinion •of this court in Dyerson v. Railroad Co., 74 Kan. 528, *70687 Pac. 680. The rule upon this subject is stated in the fourth paragraph of the syllabus, and need not be repeated here. In the opinion it was said :
“There seems, however, to be no sufficient reason why the mere fact that a defendant is negligent in failing to discover a plaintiff’s negligence, or his danger, should in and of itself exclude all consideration of contributory negligence. Take the not unusual situation of a train being negligently operated, let us say by being run at too high a speed and without proper signals of warning being given. Now, any one injured as a result of such negligence has prima facie a right to recover. But, if his own negligence has contributed to his injury, then ordinarily his right is barred. How is the situation altered if the railroad employees add to their negligence in regard to speed and signals the negligence of failing to keep a sufficient lookout? The negligence is of the same sort; and, if the contributory negligence of the person injured prevents a recovery when but the two elements of negligence are present, consistency requires that it should have the same effect, although a "third element is added.” (p. 585.)
By the instruction given, and in two others, the jury weré informed that the plaintiff might recover if the motorman by the use of ordinary care might have seen him in an exposed position of danger in time to have avoided the accident, although they should also find that the deceased was also negligent in going upon the track. This was contrary to the rule in the Dyerson case and other decisions of this court. In Railway Co. v. Bentley, 78 Kan. 221, 93 Pac. 150, an instruction was held to be erroneous which stated that:
“If the employees in charge of the engine could by the exercise of reasonable diligence have seen the deceased on the track in sufficient time to stop the engine, and thus avoid the injury, plaintiff would be entitled to recover notwithstanding the deceased was negligent in failing to discover the approach of the engine.” (p. 226.)
The Dyerson and Bentley cases were followed in. Himmelwright v. Baker, 82 Kan. 569, 109 Pac. 178.
It is true, as stated in the opinion in the Dyerson *707case (74 Kan. 528, 534), that a different principle would apply if the motorman actually saw the deceased in an exposed position of danger in time to have averted the injury, for in that case the element of recklessness or wantonness analogous to a willful and intentional wrong would have allowed the application of a different rule.
In the argument upon the rehearing the alleged insufficiency of the findings and evidence was again discussed, and it is insisted by the defendant that the opinion is based upon a misapprehension of the facts as presented in the evidence. This may not be very important in view of the conclusion now reached, but it is believed that the record warranted the views expressed in the opinion.
Because of error in the instructions referred to the judgment is reversed and the cause remanded for a new trial.