(dissenting).
"' It is necessary to point out that by their answer, the appellants, Edward and Monty A. Dell, not only denied negligence on the part of Monty A. Dell, the driver of the Dell vehicle, but further interposed as an affirmative defense to the complaint, that:
“ * * * Floyd E. Kuhn so negligently and carelessly operated plaintiff’s vehicle that there was a collision between plaintiff’s vehicle and defendant Edward Dell’s vehicle; that the. damages, if any, sustained by the said Roland Kuhn were contributed to and proximately caused by the negligence and carelessness .of the said Floyd E. Kuhn, and that such negligence and carelessness may be imputed by law to the said Roland Kuhn”.
Thus the issue of contributory negligence on the part of respondent Floyd E. Kuhn was presented by the pleadings.
The majority opinion holds that the doctrine of last clear chance is not applicable unless the defendant actually has observed the plaintiff’s perilous situation in sufficient time to act so as to avoid an accident. Furthermore, such majority opinion states:
“To make the doctrine of last clear chance applicable in' the case at bar would require evidence to support a finding that appellant Monty A. Dell observed the position of the respondent Roland Kuhn’s car in sufficient time to enable Dell by evidence of due care to avoid the collision. Absent such evidence an instruction on last clear chance should not have been given.
“It is not sufficient that the evidence would support a finding that appellant Dell in the exercise of due care should have observed the Kuhn car sooner than he did because, if such failure.on Dell’s part was a proximate cause, or contributing proximate cause, of the collision, he would be subjected to liability by application of the law of negligence for his failure so to observe. Under such state of facts any attempted application of the doctrine of last clear chance on *261the ground that appellant Dell should have sooner observed the Kuhn car, would be repetitious of the law of negligence under the guise of last clear chance.”
The purpose of the doctrine of last clear chance is to allow a plaintiff in a proper case to recover for his injuries despite the fact that he has negligently exposed himself to the danger.
The Supreme Court of Washington in the leading case of Mosso v. E. H. Stanton Co., 75 Wash. 220, 134 P. 941, L.R.A.1916A, 943 (1913), dealing with the last clear chance doctrine established a formula for determining the applicability of the doctrine, as follows:
“The objection is directed to the parts which we have italicized. The courts are wide of an agreement as to the extent of the last chance doctrine as applied to the operation of trains, street cars, automobiles, and the like. But what we conceive to be the sounder view is this: Assuming that a traveler has negligently placed himself in a dangerous situation upon the highway, then, as we have seen, whenever the person in control of such agency actually sees the traveler’s situation and should appreciate his danger, the last chance rule applies without regard to the continuing negligence of the traveler concurring with that of the operator up to the very instant of the injury.
“A second situation to which the rule applies is this: Where the person in control of such agency by keeping a reasonably careful lookout, commensurate with the dangerous character of the agency and the nature of the locality, could have discovered and appreciated the traveler’s perilous situation in time by the exercise of reasonable care to avoid injuring him, and injury results from the failure to keep such lookout and to exercise such care, then the . last chance rule applies,- regardless -of . the traveler’s prior negligence, whem •• ever that negligence;has terminated, or culminated in a -situation of peril from which the exercise of.. ordinary care on-, his part would.-not- thereafter extricate''; him. This last phase :of the rule ap-. ¡ plies whenever injury results from new negligence or from ¿'continuance of the operator’s negligence' after that of the; traveler has so ceaséd of culminated.
“The application of:the rule to the1--1 first situation as above indicated needs - no support outside of simple considerations of humanity. Any other view would condone willful or wanton injury. The application of the rule to the second situation indicated has been sustained by this
court, arid we think soundly, in a case of injury'to an auto*262mobile stalled through its owner’s negligence on a railway crossing. Nicol v. Ore.-Wash. R. & Nav. Co., 71 Wash. 409, 128 Pac. 628 [43 L.R.A.,N.S, 174]. Another court has upheld it in case of injury to a portable steam engine similarly situated. Bullock v. Wilmington & Weldon R. Co., 105 N.C. 180, 10 S.E. 988. The law will hardly hold more cheap or yiew with less solicitude the safety or life of a human being. * * *»
The second part of the Washington formula is strictly limited to those situations where the plaintiff’s negligence has culminated or.terminated in a position of peril from which he could not, by the exercise of reasonable care, extricate himself. Everest v. Riecken, 30 Wash.2d 683,193 P.2d 353 (Wash.1948); Thompson v. Porter, 21 Wash.2d 449, 151 P.2d 433 (Wash.1944).
The Restatement of the Law of Torts recognizes the application of the last clear chance doctrine where the defendant is trader a duty to exercise vigilance though he did not know of the plaintiff’s perilous situation. Restatement of Law of Torts § 479 provides:
“A plaintiff who has negligently subjected himself to a risk of harm from .the defendants subsequent negligence may recover for harm caused thereby if, immediately preceding the harm,
(a) the plaintiff is unable to avoid it by the exercise of reasonable vigilance and care, and
(b) the defendant
(i) knows of the plaintiff’s situation and realizes the helpless peril involved therein; or
(ii) knows of the plaintiff’s situation and has reason to realize the peril involved therein; or
(iii) would have discovered the plaintiff’s situation and thus had reason to realize the plaintiff’s helpless peril had he exercised the vigilance which it was his duty to the plaintiff to exercise, and
(c) thereafter is negligent in failing to utilize with reasonable care and competence his then existing ability to avoid harming the plaintiff.”
In discussing the applicability of the doctrine of last clear chance, the annotators of A.L.R. (92 A.L.R. 47; 119 A.L.R. 1041; 171 A.L.R. 365), have divided the factual situation of decided cases into four categories :
“First category: danger actually discovered by defendant; injured person physically unable to escape.
Second category: danger actually discovered by defendant; injured person physically able to escape. *263Third category: discovered by defendant but ought to have been; injured person physically unable to escape. danger not actually
Fourth category: danger not actually discovered by defendant but ought to have been; injured person physically able to escape.”
Application of the doctrine of the last clear chance cases falling within the third category necessarily require that there be upon the defendant a duty to observe; a breach of that duty; and an injury to a plaintiff whose antecedent negligence has left him in a state of peril from which he cannot extricate himself.
The case at hand falls within the third category, as the record indicates that the respondent Roland A. Kuhn was unable to move his car off the road because it was out of gas and would not start. In Drury v. Palmer, 84 Idaho 558, 375 P.2d 125, this court stated:
“ * * * It is not only the duty of the operator to look, but it is his duty to see and be cognizant of that which is plainly visible or obviously apparent, and a failure on his part in this regard, without proper justification or reason, makes him chargeable for failure to see what he should have seen had he been in the exercise of reasonable care.”
In discussing the cases, which if taken at face value, would deny application of the doctrine of last clear chance, the A.L.R. Annotation at 92 A.L.R. Ill said:
“While the cases are numerous that declare in sweeping terms that the doctrine never applies unless the danger was actually discovered, and that failure to discover it, although there was a duty to discover it, is not sufficient, [,] there are comparatively few of the great number of cases examined for the purposes of the present comment that on their facts have deliberately, and with full appreciation of the distinction between a case of concurrent and one of non-current negligence on the part of the injured person, declined to apply the doctrine to the latter situation because the danger was not actually discovered, if there was a duty to have discovered it the nonperformance of which was negligence related to the accident as a proximate cause. When such cases are examined with reference to their facts, it will generally be found that one or more of the conditions embraced by the hypothesis of this category was lacking.”
An examination of the Idaho cases on this subject discloses that the last clear chance doctrine has been held inapplicable in situations where the defendant was justified in assuming that the plaintiff’s deceased would move out of the danger zone (Neil v. Idaho & Washington N.R.R., 22 *264Idaho 74, 125 P. 331); where the plaintiff was in complete control of the machinery and was held to assume the risk (Rippetoe v. Freely, 20 Idaho 619, 119 P. 465) ; and also where there was active negligence on the part of the plaintiff creating an emergency situation not realized by the defendant until too late to avoid the accident. Cournyer v. Follett, 85 Idaho 119, 376 P.2d 707; Hale v. Gunter, 82 Idaho 534, 356 P.2d 223; Laidlaw v. Barker, 78 Idaho 67, 297 P.2d 287; Graham v. Milsap, 77 Idaho 179, 290 P.2d 744; McIntire v. Oregon Short Line R. R. Co., 56 Idaho 392, 55 P.2d 148.
On the other hand, this court has applied the doctrine of the last clear chance to situations in which the plaintiff’s active contributory negligence, while continuing up to the time of the accident, did not create an emergency situation, for the defendant was aware of the circumstances. Eyans v. Davidson, 57 Idaho 548, 67 P.2d 83; Bryant v. Hill, 45 Idaho 662, 264 P. 869; Geist v. Moore, 58 Idaho 149, 70 P.2d 403; Short v. Boise Valley Traction Co., 38 Idaho 593, 225 P. 398; Denbeigh v. Oregon-Washington Etc. Co., 23 Idaho 663, 132 P. 112; Anderson v. Great Northern Ry. Co., 15 Idaho 513; 99 P. 91; Pilmer v. Boise Traction Co., Ltd., 14 Idaho 327, 94 P. 432, 15 L.R.A.,N.S., 254. Also where the plaintiff’s -riegligénee':has.placed him in á position of peril) and the defendant saw or should, have seen the plaintiff in his perilous situation: Jack v. Fillmore, 85 Idaho 36, 375 P.2d 321; Stearns v. Graves, 62 Idaho 312, 111 P.2d 882; Asumendi v. Ferguson, 57 Idaho 450, 65 P.2d 713; Branson v. Northern Pacific Ry. Co., 55 Idaho 220, 41 P.2d 629; York v. Alho, 52 Idaho 528, 16 P.2d 980; See also: Hooker v. Schuler, 45 Idaho 83, 260 P. 1027, and Durrington v. Crooker, 78 Idaho 539, 307 P.2d 227.
In the Durrington case, the defendant and cross-complainant’s requested instruction on the last clear chance doctrine was given. After an adverse judgment on his cross-complaint, defendant appealed contending the trial court erred in not granting his motion for non-suit and for a new trial, contending the evidence clearly indicated the plaintiff had the last clear chance to avoid the accident. In answer to this contention the court stated:
“Assuming that the doctrine of last clear chance was available to defendant, see annotation, 32 A.L.R.2d 543, and that it was applicable to the facts in this case, the court, in the application of that doctrine, could not take the case from the jury-unless the proof was so conclusive that all reasonable minds would agree that the plaintiffs became aware, or should have became aware, of defendant’s position of peril in time to have avoided injuring him, *265by the exercise of ordinary care. If the proof leaves the issue of last clear chance in doubt, or if reasonable minds might from the evidence reach different conclusions thereon, then the issue of last clear chance must be submitted to the jury.” (Emphasis added.)
The majority opinion quoted from Short v. Boise Valley Traction Co., supra, Cournyer v. Follett, supra, Lallatin v. Terry, supra, and Hale v. Gunter, supra, in support of the proposition that the last clear chance doctrine is not applicable unless the defendant actually saw the plaintiff in a state of peril. A careful examination of these cases discloses that the injured parties were actively contributorily negligent up to the time of the accident, and in view of the concurring negligence the defendant could not have had the “last clear chance” to have avoided the accident.
In Jack v. Fillmore, supra, plaintiff Jack was struck by a car driven by defendant Fillmore, while attempting to cross a road on foot. The road was straight and 46 feet wide at the place of impact and Mrs. Jack had walked 10 feet onto the paved road when she was struck. This court said:
“Under the doctrine of last clear chance it was the duty of the driver, seeing Mrs. Jack’s danger, or being so situated that she should have seen it, to do all in her power to avoid injuring Mrs. Jack.” (Emphasis added).
In Branson v. Northern Pacific Ry., supra, the deceased was driving a truck pulling a hay rake along a private road which crossed defendant’s tracks at a private crossing. When deceased attempted to cross the tracks one of the wheels of the hay rake caught on a motor-cart which the defendant’s employees had left at the crossing. He was struck by one of the defendant’s locomotives when he stopped to examine the situation. There this court said:
“Under the doctrine of last clear chance it was the duty of the engineer, seeing Peterson’s danger, or being so situated that he should ■have seen .it, to do all in his power to avoid injuring or killing him. Whether he should have applied the brakes sooner than he did in order to reduce■the speed of the train and give Peterson more time than was given him., in which to escape, and whether he should have sounded an alarm in order to warn him, were questions for the jury.” (Emphasis added).
In York v. Alho, supra, plaintiff-appellant lost control of his car on an icy road and travelled in an uncontrolled manner for about ISO to 200 feet, before colliding with a truck driven by defendant’s servant. The record indicated that when appellant’s car began its skid defendant’s truck was about *266500 ■ to 600 feet away. There this court said:
“Thus there was evidence from which the jury would have been justified in concluding that a reasonable man in circumstances such as respondent’s servant was in, could or should have observed appellant’s peril, and acted in such a way as to avoid the collision.” (Emphasis added).
The cases in which this court has spoken in terms of actual knowledge by the defendant of the plaintiff’s peril being a prerequisite to the application of the doctrine, factually are not inconsistent with the cases decided by this court which speak in terms of the defendant’s awareness of the plaintiff’s peril or duty to be aware of such peril. Those cases which speak in terms of defendant’s actual knowledge, did not involve a factual situation where the plaintiff was in a position of peril because of his passive negligence, as in the case at hand.
The majority opinion accepts Dell’s testimony that he did not have sufficient time in which to avoid colliding with the Kuhn car. A similar contention was made in the case of Stearns v. Graves, 62 Idaho 312, 111 P.2d 882, where this court stated at page 323 of 62 Idaho, at page 886 of 111 P.2d:
• -“It will be- conceded if a motorist sees a pedestrian walking toward the path .of his automobile, unaware of his danger, it is the duty of such motorist to sound a warning. But suppose a motorist does not see the pedestrian, hence, gives no warning, when, by the exercise of reasonable and ordinary care he would and could have seen him and given warning of his approach, and the pedestrian is injured, may the motorist use his own carelessness and want of reasonable and ordinary care as a shield to escape liability? To hold he cannot would tend to promote the security of life and limb. But to hold he can would tend to defeat, if not largely destroy, the underlying purpose of the last clear chance doctrine. For these reasons we conclude there is no merit in appellants’ last above-stated contentions.”
It is my conclusion that as concerns the doctrine of the last clear chance, this court has committed itself to the application of the doctrine not only to those cases where the defendant actually was aware of the plaintiff’s peril, but also to the cases where the exercise of ordinary care and caution, the defendant, under a duty to observe, in should have seen or been aware of the plaintiff’s peril.
The purpose of the humanitarian doctrine of the last clear chance is to allow a plaintiff in a proper case to recover for his injuries despite the fact that he has negligently exposed himself to the danger caus*267ing his injuries. In such a case to allow any recovery, the jury would first have to find negligence on the part of the defendant, otherwise there would be no recovery. If such jury did find negligence on the part of the defendant and no contributory negligence on the part of the plaintiff, the jury would have to find for the plaintiff. Only when the jury finds negligence on the part of the defendant and also contributory negligence on the part of the plaintiff does the doctrine become applicable.
The majority opinion reasons that the doctrine can only be applied where the negligent defendant actually saw or was aware of the plaintiff’s peril; that the doctrine cannot be applied to a situation where the defendant while not actually seeing or being aware of the plaintiff’s peril should have seen or been aware of it, because under such' latter' situation, the negligence causing the injury would be the failure to see or’ observe the plaintiff’s peril. While that may be true, where the issue of contributory negligence has been interjected by the defendant’s answer, which if supported by the facts no recovery could be had, it takes from the jury the opportunity to pass on the issue of the plaintiff’s contributory negligence.
The function of a jury is to resolve issues of - fact. An instruction on this rather anomalous doctrine gives a criterion to the jury to assist in the evaluation of the evidence presented and the application of other instructions dealing with negligence, contributory negligence, and proximate cause.
The plaintiffs’ motion for new-trial was based on the grounds of insufficiency, of the evidence to sustain the verdict-, and failure to instruct the'jury concerning the doctrine of last clear chance. The trial court in ruling on this motion stated in its order: ■ . , .
“The Court does hereby Order that the plaintiff be and he is hereby granted a new trial in the above-entitled action, and the verdict of the. jury is hereby set aside and held for naught; that this motion is granted upon the ground that the pleadings and evidence clearly raised the issue of whether or not defendant had the last clear chance to avoid the accident involved in this' action, and the issue having been made, it should be submitted to the jury for determination.”
Briefly reiterating the facts before the court at that time, the Kuhn car stopped" approximately a quarter of a mile below the top of a slope in the highway, with its two right wheels off the paved- portion of the roadway, and about six and a half feet onto the paved roadway. The Dell car' *268struck the rear of the Kuhn car about 5:30 P.M., November. 21, 1961. A conflict appears whether lights’ were necessary or not, and also whether the lights of the Kuhn vehicle were on. The Kuhn vehicle had ran out of gasoline and wouldn’t start. Floyd Kuhn, the driver; rather than getting completely off the travelled portion of the highway testified that the shoulder of the highway looked soft. At the place where the accident' occurred, the paved roadway was 41 feet in width with a center line down the middle, leaving fourteen feet of the right hand lane open to pass, and 34 feet of the .whole highway. Appellant Monty. A. Dell testified that he was looking straight.ahead when he came over the crest of the hill behind the Kuhn vehicle, and that he did not see the Kuhn car (until it was too late to avoid the accident.
In ruling on the.motion the trial court had to resolve the problem whether the ; verdict signed by only nine of the jurors was properly rendered. .The order grant- ■’ ing the new trial reflects that the court not only evaluated the law applicable, but also evaluated the .record before it, which presented many factual issues to be resolved. To arrive at the conclusion that ’the new trial should- be -granted necessitated an. evaluation of the:whole record in order to-determine whether-factual issues were-in., the record which :made: applicable the doctrine of last clear chance, and the trial court made this determination.
The granting or denial of a new trial will be reviewed only for manifest error or abuse of discretion. Walsh v. Winston Bros. Co., 18 Idaho 768, 111 P. 1090; Say v. Hodgin, 20 Idaho 64, 116 P. 410; Baillie v. City of Wallace, 22 Idaho 702, 127 P. 908; McAllister v. Bardsley, 37 Idaho 220, 215 P. 852; Stone v. Matthies, 49 Idaho 277, 287 P. 951; Stearns v. Graves, 62 Idaho 312, 111 P.2d 882; Poston v. Hollar, 64 Idaho 322, 132 P.2d 142; Smith v. Big Lost River Irrigation District, 83 Idaho 374, 364 P.2d 146.
In MacDonald v. Ogan, 61 Idaho 553, 556, 104 P.2d 1106, 1107, this court stated:
“It should be remembered that, in passing upon a motion for a new trial, the appellate court applies a different rule to the consideration of an order granting a new trial from what it applies to the denial of a new trial. This difference is predicated on the grounds that, where a new trial is granted, both parties are put back in the status in which they found themselves on the original trial; and each party has his chance to present the case anew to the court and jury. Whereas, an order denying a motion for a new trial terminates the case and denies the *269losing party any chance of resubmitting his case or having it again heard by the court and jury.”
One further facet of this case merits scrutiny by this court. The trial court gave an instruction on the “sudden emergency” doctrine. In giving such an instruction the trial court must have believed there were facts in the record justifying such an instruction. However, on the motion for new trial, he found facts in the record which in his discretion were sufficient to justify the giving of an instruction of the doctrine of last clear chance, after he had first denied the plaintiff’s request for such an instruction. This, in my mind, ■ indicates that the trial court had misgivings as to the correctness of his earlier determination of the applicability of the “sudden emergency” doctrine. Under any view of the “last clear chance” doctrine, if the facts would justify giving of that instruction, certainly that would eliminate from consideration the application of the doctrine of sudden emergency.
It is my conclusion that the trial court was doing substantial justice in granting the motion for new trial, and no abuse of its discretion appearing, the trial court’s order should be sustained.
KNUDSON, J„ concurs with this' dissenting opinion.