I concur in the judgment of affirmance. It appears clearly from the evidence that if the defendant's engineer, at the time he hallooed at the plaintiff, had put on the brakes instead of hallooing, the accident would not have occurred. The evidence was also of such a character as would have justified the jury in finding: That at this point of time the plaintiff was unaware of the approach of the train, and that the engineer knew of this fact and that plaintiff was about to step in front of the engine. On this appeal, therefore, which is from a judgment of nonsuit, these facts must be assumed as established. The sole question in the case, then, is whether the engineer, being aware of the inevitability of the accident unless he stopped the train, was guilty of such negligence as to bring the case within the doctrine that, "the party who last has a clear opportunity of avoiding the accident, notwithstanding the negligence of his opponent, is considered solely responsible." (Esrey v. Southern Pacific Co., 103 Cal. 545, [37 P. 500].)
The doctrine in question, as above and elsewhere expressed, is susceptible of two interpretations: The one is that the doctrine will apply only to cases where the negligence of the injured party is wholly antecedent to the negligence of the party causing the accident; and hence that where the negligence of the injured party is continued up to the time of the accident, it will not apply if there be a physical possibility for him to escape. The other is, that it will apply even to cases where the negligence of the injured party continues up to the time of the accident, if it be known to the other party that he is unaware of his danger and that the accident will *Page 7 inevitably occur. The former doctrine is asserted in the following, and some other cases: Holmes v. South. Pac. C. Ry.Co., 97 Cal. 169, [31 P. 834]; Everett v. Los Angeles Ry.Co., 115 Cal. 119, [43 P. 207, 46 P. 889]; Green v. LosAngeles Terminal Ry. Co., 143 Cal. 31, [101 Am. St. Rep. 68,76 P. 719]. The latter is expressed in the opinion of the dissenting judges in Everett v. Los Angeles Ry. Co., 115 Cal. 111, [42 P. 207, 46 P. 889], and in Herbert v. SouthernPacific Co., 121 Cal. 232, [53 P. 621], and Lee v. Market St.Ry. Co., 135 Cal. 293, [67 P. 765]. In Esrey v.Southern Pacific Co., 103 Cal. 545, [37 P. 500], as inHarrington v. Los Angeles Ry. Co., 140 Cal. 514, [98 Am. St. Rep. 85, 74 P. 15], the case was one in which, after the danger became imminent, there was a physical impossibility for the plaintiff to escape, but the language of the court seems to accord with the more liberal doctrine. The preponderance of authority would, therefore, seem to have been in favor of the more liberal application of the doctrine, prior to the decision in Green v. Los Angeles Terminal Ry. Co., 143 Cal. 31, [101 Am. St. Rep. 68, 76 P. 719]; but that case seems to be in conflict with this view, and upon its authority I feel constrained to concur in the conclusion of my associates.
I do not, however, concur, altogether, in the view that the doctrine of last opportunity can apply only where there is "gross and wanton negligence" on the part of the engineer, or "a reckless disregard on his part" of the safety of the deceased. This proposition is true only in a qualified sense. But the term "ordinary care," as applied to the engineer on a train in an emergency, means the ordinary care of competent men in that position, and cannot be regarded as anything less than great care (Henderson v. Los Angeles Traction Co., 150 Cal. 689, [89 P. 976]); and, as has been expressed in several cases, the failure to exercise such care by a defendant may be regarded as amounting "to a degree of reckless conduct that may well be termed willful and wanton." (Esrey v. Southern PacificCo., 103 Cal. 544, 545, [37 P. 500]; Everett v. Los AngelesRy. Co., 115 Cal. 114, [43 P. 207, 46 P. 889].) *Page 8