I am not able to concur in the judgment of affirmance. I think that the admitted contributory negligence of the respondent prevents his recovery in this action.
No one disputes the old and fundamental rule that no one can recover damages for personal injuries which were in part caused by his own negligence, although the negligence of the party sued may also have contributed to the injury. This rule has been slightly modified in this state, and a few exceptions to its absoluteness have been allowed; but none of the allowed exceptions include, in my opinion, the case at bar. The first and leading case here which opened the door to any modifications of the rule is Needham v. San Francisco etc. R.R. Co., 37 Cal. 409, in which the law on the subject, as it had been uniformly declared by the highest courts of New York, was expressly departed from. But the doctrine announced in Needham v. SanFrancisco etc. R.R. Co., 37 Cal. 409, was put entirely on the declared distinction "between cases of proximate and remote negligence on the part of plaintiff," — that is, where the negligence of plaintiff contributed only remotely to the injury, while the negligence of the defendant was the proximate cause of the injury, there the latter is liable, notwithstanding the negligence of the former. Sanderson, J., delivering the opinion of the court, quotes approvingly from the supreme court of Vermont, as follows: "When there has been mutual negligence, and the negligence of each party was the proximate cause of the injury, no action whatever can be sustained. In the use of the words `proximate *Page 298 cause,' is meant negligence at the time the injury happened." Now, in the case at bar, it cannot be questioned that the negligence of plaintiff contributed approximately to the injury, — that is, his negligence was at the very instant of the "time the injury happened." It is, therefore, not within Needham v. SanFrancisco etc. R.R. Co., 37 Cal. 409, where the negligence of the plaintiff consisted in the fact that, at a time long prior to the accident, and at a place far distant from the place of the accident, he had negligently allowed the horse injured to escape from his pasture and stray on to the railroad. The other cases relied on by respondent are mostly cases where young children were injured, and the remote negligence was that of their parents, who had previously to the injury allowed the children to play near the railroad. The case most strongly in favor of respondent is Esrey v. Southern Pacific Co., 103 Cal. 541, decided in Department; but in that case the negligence of plaintiff, if it could be called negligence, was very slight, and the conduct of those in charge of the train which injured her was reckless, willful, and wanton in the highest degree. The slightest care on their part would have prevented the injury. The case at bar is, in my opinion, clearly within the settled rule that one guilty of contributory negligence cannot recover.
*Page 299Hearing in Bank denied.