In Banc. This is an action to recover damages for personal injuries resulting from a collision between a horse-drawn junk wagon and a street car owned and operated by the defendant company. Plaintiff was driving north on the right side of Williams avenue in the city of Portland. He says, in substance, that when he reached the center of the intersection of Williams avenue and Tillamook street he saw the street car about one block away coming towards him on Williams avenue; that after he turned to the left around the center of the intersection for the purpose of going west on Tillamook street and had gone about 20 or 25 feet, he was struck by the street car, thrown from his wagon, and sustained injuries for which damages are alleged. Defendant company asserts that plaintiff did not go around the center of the intersection but that he "cut the corner"; that before he reached the south property line of Tillamook street he turned across Williams avenue in a northwesterly direction intending to go west on Tillamook street; that when the front of the street car reached the center of the intersection, the defendant first discovered plaintiff who was about 30 or 40 feet away. The following special verdict was submitted:
"We, the jury, duly impanelled and sworn to try the above entitled action, in response to the following questions do make the following answers and findings of fact:
"(1) Question. Did the plaintiff, in turning to the left from Williams avenue to drive westerly upon Tillamook street, fail to go beyond the center of the intersection of Williams avenue and Tillamook street; in other words did the plaintiff, in turning from Williams avenue into Tillamook street, cut the corner? (Answer yes or no.)
"Answer. Yes. *Page 650
"If you answer "Yes" to the foregoing question, then answer the following question:
"(2) Question. If the plaintiff had gone beyond the center of the intersection in turning from Williams avenue into Tillamook street, would the accident have occurred? (Answer yes or no.)
"Answer. No.
"(3) Question. Did the motorman of the street-car after he had actual knowledge of the peril of the plaintiff, exercise reasonable care to avoid the accident? (Answer yes or no.)
"Answer. No."
From a judgment entered in favor of plaintiff, the defendant appeals, asserting there is no evidence to support the last clear chance doctrine and that it was error to submit such issue to the jury.
In view of the finding of the jury that plaintiff "cut the corner" and was therefore guilty of contributory negligence, it is plain that this judgment can not be sustained unless the last clear chance doctrine applies. Notwithstanding plaintiff's negligence placed him in a position of peril, it would, under a humanitarian doctrine, be incumbent upon the street-car company to exercise due care to avoid injuring him after discovering his perilous position. The vital questions are: Is there any evidence tending to show that, after the motorman had actual knowledge that plaintiff was in a position of danger, he failed to exercise due care to avoid injuring him? If this question be answered in the affirmative, we should next inquire: Had plaintiff's negligence ceased at the time of actual impact or was it a continuing, operative factor which concurred with the subsequent negligence of the defendant company in causing the injury of which complaint is made?
Under the well established rule in this jurisdiction, it will not suffice to invoke the doctrine that the *Page 651 motorman, by the exercise of reasonable diligence, ought to have known that plaintiff was in a position of danger. Actual knowledge is essential: Morser v. Southern Pacific Co., 110 Or. 9 (222 P. 736); Stewart v. Portland Ry. L. P. Co., 58 Or. 377 (114 P. 936, 63 Am. Eng. R. Cas. (N.S.) 794); Scholl v.Belcher, 63 Or. 310 (127 P. 968); Richardson v. Portland Ry. L. P. Co., 70 Or. 330 (141 P. 749); Long v Pacific Ry. Nav.Co., 74 Or. 502 (144 P. 462, 145 P. 1068, L.R.A. 1915F, 1151);Twitchell v. Thompson, 78 Or. 285 (153 P. 45); Emmons v.Southern Pacific Co., 97 Or. 263 (191 P. 333); Marshall v.Olson, 102 Or. 502 (202 P. 736). True, it is not necessary to establish such knowledge by direct and positive evidence. The jury is permitted to draw any reasonable inference from the facts proven. The mere fact, however, that there was no obstruction to the motorman's vision and that he could have seen had he looked does not warrant the inference of actual knowledge. To so hold would be a repudiation of the rule above stated which has been so long established. In the instant case the record is absolutely devoid of any evidence of knowledge on the part of the motorman.
Assuming, however, that there is some evidence of actual knowledge, it is clear there was no cessation of plaintiff's negligence at the time he was struck by the street-car. The finding of the jury is conclusive that plaintiff "cut the corner." His negligence never ceased but continued up to the very time of collision. We are not dealing with a case where the vehicle had broken down or was stalled on the track as in Emmonsv. Southern Pacific Co., supra, and McKeag v. Portland ElectricPower Co., 128 Or. 614 (275 P. 667). We are not confronted by a condition brought about through negligence of the plaintiff, from which he could not *Page 652 extricate himself. The evidence clearly and undisputably shows that plaintiff's negligence was a contributory factor in bringing about his alleged damage. As stated in the Emmons case:
"The doctrine is also affected by the condition that it will not apply if the negligence of the plaintiff continues operative at the time of collision."
The authorities are legion to the same effect. See exhaustive note 63 A.L.R. 44. Plaintiff started out to cut the corner and he continued in this violation of the law of traffic up to the very moment he was struck. Aside from the question of knowledge — upon which the authorities in other jurisdictions are in conflict — it is clear that plaintiff is precluded from recovery on account of his contributory negligence. The last clear chance doctrine is not involved. Emmons v. Southern Pacific Co., supra, was remanded for a new trial to give plaintiff therein an opportunity properly to plead the last clear chance doctrine. The court said:
"Although the plaintiff might be considered negligent in not attempting to start her car after it stopped on the track, yet a jury might think she did not have time before the train collided with her machine."
The doctrine was thoroughly reviewed in the Emmons case and what was said there leads us to the conclusion there can be no recovery here.
We are unable to agree with the contention that defendant, having joined in the submission to the jury of the question relative to the last clear chance doctrine, is deemed to have waived this assignment of error. At the conclusion of the taking of testimony, defendant moved to have the court withdraw from the consideration of the jury such issue and also specifically requested the court to instruct the jury that this doctrine *Page 653 was not involved. The court having held against defendant, we think defendant could well join in the submission of the question without being deemed to have waived the point. It is somewhat analogous to a case where a defendant, after the denial of a motion for nonsuit, offers testimony in its own behalf. Under such circumstances this court has held that there is no waiver and that the failure of the court to grant a non-suit may be assigned as error on appeal: Cram v. Powell, 100 Or. 708 (197 P. 280); Dayton v. Fenno, 99 Or. 137 (195 P. 154).
Eliminating the last clear chance doctrine, it follows, in view of the special verdict, that plaintiff was guilty of contributory negligence and therefore can not prevail.
The judgment of the lower court is reversed and an order will be here entered dismissing the action.