(dissenting). After as careful an examination of the record and rulings in this case as I have been able to make, my mind has been forced to the conclusion that the trial below was unfair, and that some of the rulings of the court were erroneous. I have reached this conclusion (1) because the court refused to instruct the jury that the evidence of contributory negligence was conclusive, and entitled the defendant to the verdict; (2) because the court charged the jury that the plaintiff could recover, although her negligence directly contributed to the injury, if the negligence of the defendant also contributed to it, when the law is the converse of this proposition; and (3) because the court charged the jury that if “the motorman operating defendant’s motor car saw, or by the exercise of ordinary care might have seen, said vehicle upon the track a sufficient length of time before the collision occurred, as that by the exercise of ordinary care he could have avoided the collision, it was his duty to have done *272so, and if you find he did not, and the plaintiff was injured as the direct result of such negligence and failure on his part, then she is entitled to recover. Nor does the law permit the defendant’s motorman to speculate or experiment as to whether the vehicle can get off the track before his car strikes it” — and it refused the charge, as requested by counsel for the defendant, that “the plaintiff, when she saw the car approaching, or was advised by her companion that it was approaching, was in duty bound to turn from the track in ample time to avoid collision ; and if she speculated upon the chances, and remained upon the track longer than was safe or necessary, when she might have driven out of it, and out of all danger to herself and her companions, then she was guilty of negligence in remaining upon the track so long as she did.”
i. Conceding that the plaintiff drove upon the track from the east side, as she testified, conceding that the motorman was guilty of negligence, and conceding that every other fact and circumstance was as the plaintiff and her witnesses testified, these facts remained unquestioned: The plaintiff and her sisters drove upon the car track to avoid some mud in the driveway east of the track, which was neither impassable nor dangerous. When they passed upon the track, they could see for a distance behind them of at least 800 feet. It was a dark evening. When the car came upon the street upon which they were driving, it was more than 800 feet behind them, and it bore a bright headlight, which they could and did see, while the motorman could not and did not see their buggy until he came within about 400 feet of it. TJhey saw the headlight. They knew that it was the light of an approaching car, and that neither they nor any other person could tell the distance or the speed of the car, and the light it carried, from a view of it in the dark. The motorman could not turn the car from the track, and both parties knew that fact. The plaintiff could drive her surrey off the track into the mud without any danger, and both parties knew and acted in view of that well-known fact. The plaintiff and her sisters knew that the car was approaching when it was more than 800 feet from them, and that its collision v.fh them was inevitable unless they drove from the track before it reached them or the car was stopped. To them, therefore, came the first notice of the peril, the danger, because they saw the headlight of the car before the motorman saw the surrey. Upon them the first and primary duty to avoid the accident was imposed, because the motorman could not turn his vehicle, and they could drive their vehicle from the track; because it was their legal duty to do so, and to avoid the collision; because the motorman had the right to presume that they would discharge that duty; and because they had the first notice of the danger. McCann v. N. Y. & Q. C. Ry. Co., 56 App. Div. 419, 421, 67 N. Y. Supp. 748; Holwerson v. St. Louis & Suburban Ry. Co., 157 Mo. 216, 227, 57 S. W. 770; Morrissey v. Bridgeport Traction Co., 68 Conn. 215, 35 Atl. 1126; Lockwood v. Belle City St. Ry. Co. (Wis.) 65 N. W. 866; McClellan v. Chippewa Valley Electric Ry. Co. (Wis.) 85 N. W. 1018, 1019. This duty was imposed upon the occupants of the surrey the moment they saw the approaching headlight, and consequently knew the danger, and it continued to be *273until the accident occurred. How did they discharge this duty? They never discharged it at all, but simply neglected to do so, and voluntarily took the chance that the car might run too slowly to hit them, or the motorman might stop it before it reached them. They testified that they first saw the headlight when they had driven about 60 feet upon the track; that they knew it was the headlight of a coming car, and they could not tell its speed or distance by looking at it; that they watched it all the time until the car struck them; that after they saw it they continued to drive along the track upon a slow trot for a distance of 75 or ioo feet, and then for the first time tried to drive off the track, and at the same time screamed to the motorman to stop. There is no doubt or dispute about these facts, and to my mind they present a clear case of contributory negligence, which was the primary cause of the accident. It was certainly the duty of the plaintiff to drive from the track as soon as she knew that a car was coming, whose distance and speed she could not know. It was her duty to do this every instant of the time after the approaching car and the danger it threatened were first discovered. It was her failure to discharge this duty, her negligence, that not only contributed to cause the accident, but was the primary, moving cause of it. If she had not been guilty of this negligencé — if she had driven from the track at the time she first learned that the car and its inevitable danger were approaching, or at any time after that while she was driving the 75 or 100 feet which she subsequently traversed along the track — the accident could not have occurred. Nor does the fact, if it is a fact, that the motorman was negligent after he discovered the danger, condone or modify the fatal effect of this negligence of the plaintiff, because his negligence after discovery of the peril is met by the fact that after the plaintiff discovered the peril she was first and continually guilty of the negligence which was the primary and effective cause of the injury. Conceding all the negligence charged upon the defendant, the case is one in which each of two parties who owed relative duties to each other neglected his own duty, and relied upon the faithful discharge by the other party of his duty, so that the negligence of each directly contributed to cause the injury that resulted. In such a case it is always the duty of the court to instruct the jury that there can be no recovery. Clark v. Zarniko, 45 C. C. A. 494, 496, 106 Fed. 607, 608, and cases there cited.
2. It is a familiar principle of law that one whose negligence is one of the proximate causes of his injury cannot recover damages of another, even though the negligence of the latter also contributed to it. The question in such a case is not whose negligence was the proximate cause of the injury, but it is, did the negligence of the plaintiff directly contribute to it ? If it did, that negligence is fatal to his recovery, and the negligence of the defendant does not excuse it. Pyle v. Clark, 25 C. C. A. 190, 192, 79 Fed. 744, 746, 747; Motey v. Granite Co., 20 C. C. A. 366, 369, 74 Fed. 156, 159; Chicago & N. W. Ry. Co. v. Davis, 3 C. C. A. 429, 431, 53 Fed. 61, 63; Railway Co. v. Moseley, 6 C. C. A. 641, 643, 646, 57 Fed. 921-923, 925; Reynolds v. Railway Co., 16 C. C. A. 435, 69 Fed. 808, 811, 29 L. R. A. 695; Schofield v. Railway Co., 114 U. S. 615, 618, 5 Sup. Ct. 1125, 29 L. Ed. 224; Railroad Co. v. Houston, 95 U. S. 697, 702, 24 L. Ed. 542; Hay*274den v. Railway Co., 124 Mo. 566, 573, 28 S. W. 74; Wilcox v. Railway Co., 39 N. Y. 358, 100 Am. Dec. 440.
The charge of the court was that the converse of this proposition was the law of this case. It was, in effect, that the negligence of a plaintiff which directly contributed to cause the injury was no defense to a recovery if the negligence of the defendant also contributed to it. The court treated of this subject in four places in the charge: First, when discussing the theory of the defendant that the plaintiff drove upon the track from the west side, it said: If the plaintiff “negligently drove across the track in front of the defendant’s car, which was running on the east track in the same direction and so close thereto as that the motorman in charge thereof, in the exercise of proper care and diligence, with the means and contrivances at hand, could not stop the car until the collision had occurred, then the plaintiff cannot recover.” This was a charge that if the defendant was guilty of no negligence whatever, and the plaintiff’s negligence was the sole cause of the injury, she could not recover. In the second place, the court, in treating of this entry upon the west side of the track, said that if plaintiff “drove her vehicle across .the track in front of defendant’s car, yet if you further find from the evidence that defendant’s motorman, by the exercise of proper care and vigilance, could have avoided the injury by stopping his car upon the first appearance of danger, and before the collision occurred, and negligently and carelessly failed to do so, then the plaintiff should recover.” That is to say, no matter how negligent the plaintiff was, yet, if the defendant was guilty of any negligence whatever — if the motorman could have avoided the injury by the exercise of even a reasonable degree of care — then the plaintiff, could recover. His third charge upon the subject was when treating of the theory that the plaintiff entered the track upon the east side, and he closed that charge with these words:
“So that if, from all the evidence, you find that the plaintiff, while driving along the east side of the track in order to avoid the water and mud, as before stated, failed to exercise such care and diligence as I have just indicated, and by reason of such failure and negligence directly contributed to the injury complained of, then your verdict should be for the company, unless you further find from the evidence that the defendant’s motorman, by the exercise of proper care and vigilance, could have avoided the collision by stopping his car, but negligently failed to do so, in which event the plaintiff should recover.”
This is a plain and clear statement that, if the motorman of the defendant was guilty of any want of care or vigilance whatever, the plaintiff could recover, notwithstanding the fact that the jury found that the plaintiff was guilty of negligence that directly contributed to the injury. The fourth and last place in which the court discussed this question sums up the instruction to the jury upon this subject in these words:
“Hence, although you may believe from the evidence that plaintiff was negligent in driving the vehicle upon and along the defendant’s railway track, yet if you further believe from the evidence that after she had driven her said vehicle upon the track the motorman operating defendant’s motor car saw, or by the exercise of ordinary care might have seen, said vehicle upon the track a sufficient length of time before the collision occurred, as that by *275the exercise of ordinary care he could have avoided the collision, it was his duty to have done so; and if you find he did not, and the pláintiff was injured as the direct result of such negligence and failure on his part, then she is entitled to recover.”
This is a declaration that however careless, however negligent or reckless, the plaintiff may have been, yet if the motorman could, by the exercise of ordinary care, have seen the carriage and have avoided the collision, his negligence was fatal to the defendant, and the plaintiff could recover, notwithstanding her contributory negligence.
The rule given by the court in this case in these four excerpts from the charge is not modified or contradicted by any part of the instructions. It is, in effect, as a careful reading of it will demonstrate, that a street car company is liable for damages resulting to any one driving upon its tracks in every case in which the motorman could, by the exercise of ordinary care, see the carriage and stop the car before the collision, although the party driving upon the track in front of him may have been guilty of culpable negligence which was the direct and primary cause of the accident. This seems to me to be the direct converse of the law of contributory negligence which is sustained by the authorities and is thought to be consonant with reason.
Counsel for the defendant requested, and the court refused to give, the following instruction, which, in my opinion, correctly states the law upon this subject:
“The motorman in charge of the car had a right to assume that the plaintiff, while driving upon the track in the same direction in which the car was moving, would from time to time look back to ascertain whether a car was" approaching, and would turn from the track in time to enable the car to pass without being delayed in its progress; and the motorman was under no legal duty to stop or cheek his car until he saw that the plaintiff was not going to turn from the track, or that the plaintiff could not tui'n from the track; and if the plaintiff knew that the car was approaching, and did not turn out to allow it to pass, and the motorman failed to observe that she was not going to turn off the track in time to avoid collision, and these acts of plaintiff and of -the motorman concurred in causing the injury complained of, and the act of neither without the act of the other would have caused the injuries, then the plaintiff cannot recover, and the verdict must be for the defendant.”
Morrissey v. Bridgeport Traction Co., 68 Conn. 215, 35 Atl. 1126; McClellan v. Chippewa Valley Elec. Ry. Co. (Wis.) 85 N. W. 1018; McCann v. New York & Q. C. Ry. Co., 56 App. Div. 419, 67 N. Y. Supp. 748; Winter v. Crosstown St. Ry. Co. (Super. Buff.) 28 N. Y. Supp. 695, 5 Am. El. Cas. 515; Vogts v. Metropolitan St. Ry. Co., 36 Misc. Rep. 799, 74 N. Y. Supp. 844; Smith v. Crescent City Ry. Co., 47 La. Ann. 833, 17 South. 302.
3. The court refused to give the charge quoted in the earlier part of this opinion, to the- effect that the plaintiff, when she saw the car approaching, was in duty bound to turn from the track in time to avoid the collision; that if she speculated upon the chances, and remained upon the track longer than was safe or necessary, when she might have driven out of all danger, then she was guilty of negligence in remaining upon the track as long as she did. This was, in my opinion, a correct statement of the law, and the court should have given it to the jury. McCann v. N. Y. & Q. C. Ry. Co., 56 App. Div. 419, 67 N. Y. Supp. 748. The court charged the jury:
*276“Nor does the law permit the defendant’s motorman to speculate or experiment as to whether the vehicle can get off the track before his car strikes it. On the contrary, at the first appearance of danger it is his duty to take the necessary steps to avoid a collision.”
But it refused to charge that if the plaintiff speculated upon the chances, and remained upon the track longer than was safe or necessary, when she might have driven off of it, she was guilty of negligence in so doing. The first duty when the approaching car was discovered by the plaintiff, and the advancing surrey was discovered by the motorman, was upon the plaintiff. It was her duty to drive off the track. The motorman had the right to presume that she would do so until it became apparent that she could not or would not take her vehicle from the railway. She had no more right to speculate upon the chances, and remain upon the track longer than was safe or necessary, nay, she had not as múch right, as the motorman, because she could drive her vehicle from the track, and he could not remove his from the railway. It was consequently error, in my opinion, for the court to refuse to instruct the jury that speculating upon the chances, and remaining upon the track longer than was safe or necessary, was negligence on the part of the plaintiff.
The entire trial seems to me to have been conducted under the erroneous view that no negligence of the plaintiff, no matter how culpable or causal, could constitute any defense to the action, if the negligence of the defendant in any way contributed to it. The rule which permeates the charge, and which was given to the jury at least four times in the course of it, is that the plaintiff may not recover if her negligence is the sole cause of the injury, but that, if the negligence of the defendant concurs and contributes with her negligence to cause the injury, she may recover. The true rule is that the plaintiff may not recover in any case in which his own negligence and the negligence of the defendant each directly contribute to produce the damage for which the suit is brought. It was this error in the theory of the trial that in my opinion induced the erroneous rulings to which attention has been called, and prevented the defendant, as it seems to me, from securing a fair trial of its case.