I concur in the judgment but I cannot endorse that part of the prevailing opinion which discusses contributory negligence and assumption of risk. It strikes a false note and injects a dissonance into the harmony of the law.
The majority are concerned with the question of whether plaintiff was guilty of negligence in the events leading up to the first accident. If plaintiff was negligent prior to that event the fact became legally inconsequential for he was lying in the highway unconscious at the time defendant’s truck ran over. him. Any negligence on his part had spent itself and as *609a matter of law could not constitute a proximate cause of the second accident. The fact that counsel have not presented the matter from this standpoint does not make the point less obvious.
In the first accident plaintiff received a head injury when he was thrown onto the highway, and he lay unconscious when defendant’s truck came along and injured him again. There were two separate accidents. After the first one was over the witness Baker came along, saw plaintiff lying in the street, saw defendant’s truck approaching and attempted to signal to him through swinging the headlight of his motorcycle back and forth. This was followed by defendant Williams running over plaintiff without seeing him in time to stop.
The judge instructed the jury as follows: “. . . [T]hat there is no evidence to support the defense of assumption of the risk, and there is no evidence to show that there was any negligence on plaintiff’s part that proximately contributed to cause any injuries he may have received as a result of any negligence on the part of the defendant Williams; therefore, you may not consider the defense of assumption of the risk, nor the defense of contributory negligence.” This was eminently proper, for this unconscious man could not be guilty of contributory negligence, and any previous negligence on his part as a matter of law had ceased to be operative as a proximate cause of the second accident.
Coakley v. Ajuria, 209 Cal. 745 [290 P. 33], illustrates and applies the principle here involved. It was an action for the death of one Coakley, who was struck by defendant’s automobile and died from the injuries thus received. Coakley was drunk. He undertook to cross the street and when he had staggered onto the far half of it he fell. “He struggled helplessly for a few seconds and finally succeeded in raising himself to his hands and knees, and while in that position he was struck by defendant driving a Paige 66-touring car.” (P. 747.) Defendant was driving fast on the wrong side of the street and did not see Coakley until he was upon him and it was too late to avoid the accident. The trial court granted a nonsuit on the ground of contributory negligence. The Supreme Court, in reversing this judgment, said at page 746: “The question presented by the appeal is whether the intoxication of said John A. Coakley, deceased, was as a matter of law the proximate cause of his death, which resulted instantly *610upon being struck by an automobile driven by defendant, as held by the trial court, or whether, as contended by appellant, it was the remote cause, considered in the light of the attending undisputed facts and circumstances.” It was held at page 752: “A person wholly incapacitated by the excessive use of intoxicants is in a state of helplessness in the sense as though he were asleep or suffering sickness produced by any of the many causes of illness. The law looks to the condition of helplessness and not to the antecedent cause which produced it, and his impotency to care for himself does not relieve others of the duty to avoid injuring him when it can be avoided by the exercise of ordinary care. In thus guarding life and limb the law does not condone intoxication in any sense, but it imposes upon each person the duty of exercising ordinary care to the end no person whomsoever may be made to suffer an injury that could have been reasonably avoided. A remote fault in one does not dispense with care in the other. Numerous decisions and text-writers might be cited, a large number of which deal specifically with the question of contributory negligence in its relation to intoxication, but the law is so thoroughly settled that in order to constitute a bar to an action for damages it must appear that the intoxication was the immediate, concurrent and operative cause of the injury and not merely the antecedent cause. It seems unnecessary to further pursue the subject. The case should have gone to the jury.” The case did not present a last clear chance situation and there was no discussion of that doctrine; the ruling turned solely on proximate cause and presents a complete analogy to the case at bar. See also Killough v. Lee, 4 Cal.App.2d 309, 314 [40 P.2d 897]; Kline v. Central Pacific R. R. Co., 37 Cal. 400, 406-407; Elm v. Bennett, 99 Cal.App. 573, 575 [278 P. 906].
In McKeon v. Steinway Ry. Co., 20 App.Div. 601 [47 N.Y.S. 374], it appeared that plaintiff backed his wagon in such manner that the rear end projected over defendant’s eastbound railroad track; it was hit by an approaching car; the horse ran away, plaintiff was thrown from the wagon when some 200 feet from the place of collision and fell upon the same eastbound track where he lay unconscious; he was then injured by another car of defendant traveling on that track. The trial court left the question of contributory negligence to the jury. In reversing, the Appellate Division said, at page 376 : “ [T]he rule, about which there is no occasion for serious controversy, is that, to deny to a party relief for an injury *611suffered by him by the culpable negligence of another, his negligence must not only contribute to the happening of the injury, but must contribute to it as a proximate cause. His negligence, as a remote cause, and creating a condition of peril from which he is unable to relieve himself, does not excuse the want of care in another to avoid injuring him. For the purpose of the question in the present case, it may be assumed that the plaintiff, by his negligence, resulting in the collision of the car with his wagon, was rendered helpless at another place on the defendant’s railroad, where he was in a condition of danger from a passing car, from which he was unable to extricate himself. He was therefore not chargeable with contributory negligence for not getting out of the way there of an approaching car. He did not voluntarily put himself in that position. His negligence that caused him to be there was antecedent, and not concurrent or simultaneously contributory, to his injury there received.”
Sherman v. Millard, 144 Misc. 748 [259 N.Y.S. 415] (Supreme Court.) Plaintiff was riding in an automobile driven by defendant Millard when it collided with one driven by Leicht. Plaintiff was assisted out of the vehicle and taken in front of it so that the extent of her injuries might be seen. Then defendant Edick’s car crashed into the rear end of Millard’s, driving it forward, throwing plaintiff to the pavement and seriously injuring her. “The finding of the jury that plaintiff was contributorily negligent in the first collision is questionable, if not clearly against the weight of the evidence. [Citation.] Defendants Leicht and Millard contend that plaintiff’s contributory negligence bars her from recovery for the damages she sustained in the second collision, on the theory that it continued over and contributed to the happening of the second collision. The jury found, on sufficient evidence, that plaintiff was in a dazed condition immediately following the first collision and was unable to properly care for her own safety. This being so, her contributory negligence became remote and was not a proximate or contributing cause of the second collision, either between herself and the Millard ear or between the Millard and Edick cars. She did not voluntarily place herself in front of the Millard car and was not aware that she was in that position. Her negligence was antecedent to the second collision. [Citations.] Only a responsible human being can be guilty of contributory negligence. At the time of the second impact, plaintiff was not such a being.” (P. 421.)
*612The question is not one of last clear chance but solely that of proximate cause. This matter was discussed by the Connecticut Supreme Court of Errors in Kinderavich v. Palmer, 127 Conn. 85 [15 A.2d 83]. “The plaintiff brought this action to recover for injuries suffered when he was run over by a train of the railroad company represented by the defendant trustees. The finding states that he offered evidence to prove and claimed to have proved that at the place of the accident the railroad is double tracked; that he was proceeding over the tracks at a crossing; that he had passed over the westbound track and was thereafter struck by a train of the defendants on the eastbound track; that he was thrown backward and landed between the rails on the westbound track at a point thirteen feet east of the crossing; that he lay there in an unconscious condition for approximately twelve minutes on his back; and that as he lay there a train of the defendant’s on the westbound track ran over him, severing his left arm at the shoulder.” (P. 85.) The trial court set aside a verdict for plaintiff because of error in the instructions and this ruling was affirmed on appeal. The court said, in part: “It instructed them quite fully upon the issue of contributory negligence by the plaintiff and then charged them that if he was guilty of contributory negligence this ‘would extend right through and bar a recovery.’ [P. 86.] . . . Where a plaintiff has been guilty of negligence, that negligence will not defeat a recovery if it is only a remote cause of the accident. This may be so even though the conditions necessary for the application of the last clear chance doctrine are not present. We have frequently pointed out that the application of that doctrine presupposes contributory negligence on the part of the plaintiff. [ Citations.] By contributory negligence we meant negligence of the plaintiff which, except for the application of the doctrine, would defeat recovery; otherwise there would be no occasion for the doctrine. Where there has been such negligence a plaintiff can recover only when the conditions which bring the doctrine into operation are present. Where, however, the negligence of a plaintiff is but a remote cause of the accident, those conditions need not be met, because he has not in law been guilty of such negligence as will defeat a recovery. Thus, if by conduct which is only a remote cause of the injury, the plaintiff has placed himself in a position of peril, it is not necessary to a recovery to prove that the defendant saw or should have discovered that this was so and that the plaintiff *613either could not reasonably escape or apparently would not avail himself of the opportunities open to him to do so. [P. 88.] . . . Being unconscious, he could not be charged with negligence in failing to avoid being run over by the second train; he was not there of his own volition. [Citation.] If the jury found that the plaintiff was rendered unconscious by being struck by the first train and so remained upon the track for some minutes until run over by the second train, any negligence of which he might have been guilty in not avoiding the first train would not, at least in the absence of further circumstances, prevent his recovery for the injuries suffered from the latter train.” (P. 90.) Clearly, any negligence of plaintiff at bar which preceded the first accident could not have been a proximate cause of his being run over by defendant’s truck.
There is even less substance to the claim that plaintiff assumed the risk of that injury.
I concur in those phases of the majority opinion which are not directed to the questions of contributory negligence and assumption of risk.
A petition for a rehearing was denied September 30, 1957, and the opinion was modified to read as printed above. Appellants’ petition for a hearing by the Supreme Court was denied November 5, 1957.