(concurring opinion).
I have been slow to agree with the majority of the court as to the correctness of the charge of the trial court to the jury in the respect chiefly' complained of by plaintiff in error.
The trial court in the charge instructed the jury, pages 5 and 6 of the record, as to ordinary car.e on the part of the motorman of the car, that in determining .the question they—
“Would have a right to say from the testimony how rapidly was. the car moving, was a gong being sounded — was it sounded —whether the conditions were such that plaintiff could see the approaching car, the character of the day, and all the circumstances in evidence which would aid you in determining whether ordinary care under the circumstances of the ease had been exercised by the defendant company.”
Again, record, page 6, the court said:
“If therefore, you should find that the accident was the result of the combined negligence of both plaintiff and defendant, or that it would not have occurred unless the plaintiff himself had been negligent, then no recovery can be had by the plaintiff. ’ ’
*468Again, reoord, page 7:
“It must appear before recovery can be had that plaintiff was not guilty of contributory negligence.”
The court further said, record, page 8:
“The duty imposed upon the defendant was a duty upon the part of the motorman to keep a vigilant watch and look out for vehicles and persons who might be upon the track — or approaching the track — and you are to say from the evidence, whether he did keep such vigilant watch and look out.”
Further, reoord, page 9, the court said:
“If the motorman saw, or in the exercise of his duty should have seen the vehicle, on the track or approaching the trade, then the duty was imposed upon him of giving such a warning or signal as a man of ordinary prudence woql& have given.”
The court charged the jury quite. clearly, record, pages 10, 11, 12, 13, 14, as to the duty of plaintiff being upon the track and the law as to contributory negligence on his part, what due care on his part required, stating again that if he acted without such care and so directly contributed to the happening of the accident, he could not recover.
With all these matters contained in the charge no fault can be found.
But the complaint is that after so charging the jury, the court, record, pages 14, 15, said :
“If you should find that there was negligence upon the part of the railroad company and negligence on the part of Jennings, then it would be your duty to go another step and go into the examination of the conduct of -the servants of the company after they had discovered or in the exercise of ordinary care ought to have discovered the danger the driver, Jennings, was in at the time. On that point, the duty is upon the railroad company, through its motorman, to have his car under what is called control, that is, the ear must be in the power of the motorman -to such an extent as- that when he saw this vehicle on the tracks — or when by ordinary care in his duty of looking out and watching for vehicles he ought to have seen this cab on the track — he could stop his car within reasonable time and distance so as to avoid if possible the collision.”
*469• It is urged by counsel -for plaintiff in error tbat while it is the law that' the motorman after he has seen the vehicle in danger must use his endeavors to stop the car and avoid injury, and a failure to do so, where the injury could have been avoided by his doing so, will excuse contributory negligence, yet actual knowledge on the part of the motorman is necessary to the -application of the rule, and .that is was error for the court to say that if he did not use such endeavors after he saw, or after he could have seen the danger if he had kept proper watch., the plaintiff could recover notwithstanding contributory negligence; that while a failure to see when he ought to have seen is negligence which makes -the company liable, it is not such negligence as will excuse contributory negligence; that the court had already charged the jury to that effect and that this last charge was necessarily a contradiction of the former instruction if not itself contradictory in terms. This seems to me true unless it can be said that there may be negligence in not seeing and then further negligence in not seeing.
But after having read the entire record in the case, and after having -considered the whole charge with care, I am inclined to think the error, if error it was, not so calculated to mislead and confuse the jury as to have been prejudicial to the defendant company and to require a new trial of the ease, the verdict being warranted by the evidence.
I am the more inclined, if not indeed required, to concur with my associates in affirming the judgment -of the court below as to this question in the charge for the following reasons: This court, General Term, Judge Littleford of Common Pleas sitting and dissenting, in case of, Veronicka Hall v. P., C., C. & St. L. Ry. Co., Vol. 3 O. L. R., p. 364, held, as stated in the syllabus, as follows:
“It is a proper instruction to the jury to say that a plaintiff may recover notwithstanding his own negligence exposed him to risk of injuries of which he complains, if the defendant after he became aware or ought to have become aware of the plaintiff’s danger, failed to use-ordinary care to avoid injuring him, and was thereby injured.”
*470The 'judgment of this court in the Hall case was recently affirmed by the Supreme Court without report.
The same charge, .or substantially the same, was held good in the Circuit Court of Cuyahoga County in the ease of L. S. & M. S. Ry. Co. v. Schade, 15 C. C., 424, which was affirmed by the Supreme Court without report. The last reported case on the same or substantially the same question, as it appears to me, decided by our Supreme Court, is the case of The Erie R. R. Co. v. McCormick, 69 O. S., 45, in which it is held in the syllabus as follows:
“In an action ag’ainst a railroad company by one who, by his own fault, is upon its tracks and in a place of danger, to recover for a personal injury caused by the failure of its employes operating one of its trains to exercise due care after knowledge of his peril, it is necessary to show actual knowledge imputable to the company. R. R. Co. v. Kassen, 49 O. S., 230, distinguished.”
In the opinion in the McCormick case, the court, speaking of “the law which defines liability for the wanton and willful infliction of the injury,” says:
“The concrete rule upon the subject is that if one is upon the track of a railroad company by his own fault and in peril of which he is unconscious, or from which he can not escape, and these facts are actually known by the engineer, it is his duty to exercise all reasonable care to avoid the infliction of injury.”
Again it is said in discussing the Kassen case:
“It is entirely, clear, therefore, that the liability of the company was placed upon the sole ground that after receiving actual notice that Kassen was upon the track and in a position of peril, it failed to use the means at hand to avoid injury to him.”
It- ⅛ also said in the opinion as to the rule:
“It does not impose the duty to exercise care to discover that one is so upon the tracks (i. e., upon the track by.his own fault), is in a place of danger, but it does impose a duty to bey exei’-cised upon the actual discovery. ’ ’ .
*471The decision in the McCormick case has not been reversed or modified by our Supreme Court in any reported case.
It is urged that the rule stated in the McCormick case does not apply to a street railway ease, where a person had an equal right with the street car to the use of the part of the street occupied by the ear tracks and where the motorman is required to keep a look out for persons on the track. Although it is held in Kistler v. P., C., C. & St. L. R. R., 66 O. S., 326, that “It is the duty of a locomotive engineer .to keep a look out on the track ahead of the train,” and to use ordinary care to prevent injury to a person who is evidently going on the track, I am not able to see clearly that the distinction is a good one. I am not able to see clearly how there can be “the wanton and willful infliction of injury” in a street railway case any more than in a steam railway case, without actual knowledge, or how it can be said that if the defendant company was negligent in not seeing the person on the track and the person on the track was also negligent, guilty of contributory negligence, the plaintiff can not recover, and yet that it can be said that: if the" defendant company was guilty of negligence in-not knowing that the plaintiff was on the track, such negligence will excuse the contributory negligence of the plaintiff under all the circumstances.
If the plaintiff in a street ear damage case can not be held accountable for contributory negligence when the negligence of the motorman was in not seeing him when he should hove seen him, is there then any such thing as contributory negligence in a case where one is struck by a moving oar ?
I do not say that there may not be a ease in which the negligence is so gross as to be practically “wanton and willful,” and wicked, but that, I think would be different from the ordinary case of negligence of -the motorman in not seeing when he should have seen, and governed by a different rule, the very rule as to wanton and willful negligence where the failure to see was practically as gross and culpable misconduct as the failure to use care after seeing, but it is not claimed that this is such a case.
*472Nevertheless, as I have said, in view of the facts in this ease, regarding -the verdict as warranted by the evidence, and considering the error, if any there was, as not prejudicial in this particular case, and-in view of the decisions which I have quoted as affirmed without report, I concur in the affirmance of the judgment of the court below.