Appellant's intestate, Charlie Sylvester, was fatally injured by being struck by a car owned by appellee and operated by its employee on the night of February 11, 1934, on Main Street, between Third and Fourth Avenues, in the city of Pine Bluff, and died a short time thereafter. This action was instituted by appellant as administratrix of his estate to recover damages *Page 76 for his injuries and death. As stated by appellant: "The cause was heard before a jury and submitted solely upon the doctrine of the last clear chance. From a verdict for appellee comes this appeal."
Appellant's first contention for a reversal of the judgment relates to instruction no. 8, requested by her, as follows:
"You are instructed that, even though you might find from a preponderance of the evidence on the whole case that Charlie Sylvester was negligent, yet, if you further find from a preponderance of the evidence on the whole case, that the driver, Ralph Wardlaw, by properly driving the taxi and keeping a proper and constant lookout for persons in the course of his travel, could have discovered the presence of the deceased, Charlie Sylvester, in the street, and by the use of ordinary care and diligence under the circumstances could have avoided striking him, and he failed to do so, your verdict should be for the plaintiff and against the defendant."
The court modified this instruction by striking out the words "could have" immediately preceding the word "discovered," and gave the instruction as thus modified over appellant's objection and exception to the, modification, and this assignment appears to us to be the basis of her principal contention for a reversal.
We think no error was committed in this respect. As we stated above, in the language of counsel for appellant, this was "submitted solely upon the doctrine of the last clear chance." There is no question in this case of negligence on the part of the driver and contributory negligence on the part of deceased. There is some evidence in the record that the driver of the taxi was negligent in driving at an excessive rate of speed, and the evidence is overwhelming that the deceased, while intoxicated, at a late hour of the night, walked or staggered out into the street in the middle of the block, hidden from the driver's view by a parked automobile at the curb, and directly in front of the taxi. But the contributory negligence of the deceased was a bar to the action and appellant did not submit the case on *Page 77 that theory, but on the theory of "discovered peril" or "last clear chance." "Discovered peril" means peril that is actually discovered and peril that might have been discovered. As we said in Missouri Pacific Railroad Co. v. Skipper, 174 Ark. 1083, 298 S.W. 849: "In fact, the doctrine of discovered peril means that, when one person sees another in a place of danger or peril, he must exercise ordinary care to avoid injuring him, and, if he fails to do that, he is liable." And again in St. Louis S.W. Ry. Co. v. Simpson, 184 Ark. 633, 43 S.W.2d 251, we said: "The discovered peril doctrine, or the doctrine of last clear chance, as it is sometimes called, constitutes an exception to the rule that the contributory negligence of the plaintiff is a bar to his action. Under this doctrine, where one discovers the perilous situation of another in time, by the exercise of ordinary care, to prevent injury to him, it is his duty to do so, which is regarded in law as the proximate cause of the injury, and this, too, regardless of the contributory negligence of the injured person. Such a person is regarded in law as having the last clear chance to prevent injury or death to another, and it is his duty to do so."
See also Johnson v. Poinsett Lumber Mfg. Co.,187 Ark. 237, 59 S.W.2d 30; Ark. Power Light Co. v. Dillinger, 188 Ark. 401, 66 S.W.2d 291. In the former case it was held, to quote a headnote: "In an action by a pedestrian struck by a motor-car while walking on a railroad track, an instruction that the discovered peril began, if at all, when it became apparent to the party operating the motor-car that the plaintiff `was not only upon the track between the rails but that she would remain there' held not error." Appellant relies on the case of Ark. Power Light Co. v. Heyligers,188 Ark. 815, 67 S.W.2d 1021. But the instruction there under consideration, and which was held not to be erroneous, did not assume, nor was it conditioned upon the contributory negligence of the plaintiff. After quoting from 398, vol. 1, of White's Personal Injuries on Railroads, that the rule "may now be stated to be well-established that the injured person, or his representative, may recover damages for an injury resulting from the *Page 78 negligence of the defendant, although the negligence of jury sustained, if the injury was more immediately caused by the want of care on the defendant's part to avoid the injury, after discovering the peril of the injured person." The court then said: "It would appear to be a sufficient answer to appellant's argument upon this subject to say that, if the failure to use care to avoid injuring the person whose negligence had placed him in a perilous position was the proximate cause of the injury, when proper care, after discovery of the peril, would have averted the injury, such failure to use proper care would likewise be the proximate cause of the injury to a person in peril without fault or negligence on his part, and we conclude therefore that there was no error in the instruction."
Likewise in the case of Ark. Power Light Co. v. Tolliver, 181 Ark. 790, 27 S.W.2d 985, instruction No. 1A for appellee was criticized by appellant as being incorrect under the discovered peril rule. The instruction was not copied in the opinion, but an examination of the record discloses that it does not assume the contributory negligence of the appellee, but the case was tried on the theory that she was in the exercise of due care for her own safety, and the court instructed the jury, that if she were guilty of contributory negligence, she could not recover, even though its motorman was also negligent as alleged. So it will be seen that these cases were not tried on the "discovered peril" doctrine, but upon the rule of negligence and contributory negligence.
Moreover, appellant asked and the court gave her instruction No. 11 as follows: "You are instructed that, although you may find that the deceased was crossing the street at a point other than an intersection, and although you further find that the deceased was under the influence of some intoxicant, and to the extent that he was unable to appreciate the danger to which he was subjecting himself by walking in the street, and the defendant's driver saw and realized his condition, it then became his duty to exercise ordinary care under the circumstances to prevent striking and injuring the deceased; *Page 79 and, if you find that he failed to exercise such care, and that such failure was the proximate cause of the injury, then your verdict should be for the plaintiff."
This was a correct declaration because it required the driver to see and to realize the condition of appellant's intestate, — not that he could have seen and could have realized his condition in a place of danger. In other words, the discovered peril began, if at all, just as in Johnson v. Poinsett Lumber Mfg. Co., supra, when it became apparent to the driver that said intestate was in a place of danger. It then became his duty to exercise ordinary care to prevent injury to him, and, if he failed to do so, he was negligent. Numerous other cases might be cited in support of the rule re-announced, many of which may be found cited in the cases mentioned. It follows from what we said that the court did not err in modifying said instruction in the manner stated.
It is next said that the court erred in refusing to give appellant's instruction No. 4, to the effect that the deceased was presumed to be in the exercise of due care for his own safety at the time of the injury, and that the burden is upon appellee to show the contrary, unless it sufficiently appears from appellant's testimony. No error was committed in refusing this instruction, for the reason that, since the case was tried upon the doctrine of "discovered peril" solely, the question as to whether he was in the exercise of due care for his own safety is immaterial, as, regardless of his contributory negligence, if the driver of the taxi actually saw him in time to avoid striking and injuring him by the exercise of ordinary care, and failed to do so, appellant was entitled to recover under the instructions given.
Appellant also assigns as error and argues that the court erred in giving certain instructions for appellee over appellant's objections. We have examined these assignments and find them without merit. It would unduly extend this opinion to set them out and discuss them in detail.
We have carefully examined all of the instructions given and refused and find that the court fully and fairly instructed the jury on the whole case. *Page 80
It is finally insisted that the court erred in the admission of certain testimony. The court permitted one witness to testify that the deceased appeared to be under the influence of whiskey because she saw him stagger, and another witness to testify that he talked to the driver of the taxi shortly after the accident, and the driver said: "He didn't see him until he stepped out in front of him between two cars and he was right on him before he seen him," meaning the deceased. As to the former witness, who thought the deceased was intoxicated because he staggered, we think the testimony was competent as tending to show the condition deceased was in at the time he left the restaurant where the witness as a waitress; and as to the latter, the testimony as to what the driver said, if error, was invited by appellant who asked the same witness on direct examination as to statements made by the driver.
We find no error, and the judgment is accordingly affirmed.
JOHNSON, C.J., and HUMPHREYS, J., dissent.