As I understand our former decisions, this Court has never expressly adopted the doctrine of "the last clear chance," though in working out the principles of actionable negligence, contributory negligence and proximate cause, we have in effect adopted the essentials of such doctrine in practical application, but not to the extent of making this doctrine an exception to the general rule forbidding recovery by a plaintiff guilty of negligence which proximately contributed to his injury. This doctrine is defined on pp. 144-145, 22 R. C. L., is as follows:
"Where the negligence of the defendant is the proximate cause of the injury for which suit is brought, and that of the plaintiff only the remote cause, the plaintiff may recover notwithstanding his negligence. From this principle arises the well established exception to the general rule that if, after the defendant knew, or, in the exercise of ordinary *Page 508 care, ought to have known, or the negligence of the plaintiff, he could have avoided the accident, but failed to do so, the plaintiff can recover. This principle has been styled the doctrine of 'last clear chance,' and is regarded as an exception to the general rule forbidding recovery by a plaintiff guilty of contributory negligence. In cases of this class the subsequent negligence of the defendant in failing to exercise ordinary care to avoid injuring the plaintiff becomes the immediate or proximate and efficient cause of the accident, which intervenes between the accident and the more remote negligence of the plaintiff. The doctrine of last clear chance is applicable only when the negligent conduct of which the plaintiff has been guilty was not a proximate cause of the injury. It can never apply to a case where the negligence of the person injured continued up to the very moment of the injury, and was a contributing and efficient cause thereof. But it makes no difference how short an interval occurs between the negligent act of the plaintiff and that of the defendant, if the latter had time to discover the danger and avert it by the exercise of ordinary care."
It will thus be noted that in spite of the statement that this doctrine is regarded as an exception to the general rule forbidding recovery by a plaintiff guilty of contributory negligence, the doctrine as stated in the above quotation harmonizes quite closely with the previous decisions of this Court on the subject of contributory negligence and proximate cause. See Seaboard Air Line Ry. Company v. Watson, 94 Fla. 571, text 581, 582, 113th So.2d 716, text p. 720, and cases cited, where among other things, it is said:
"It is negligence which proximately causes or contributes to causing the injury or damage which creates legal liability. There may be concurrent causes of a single injury — concurrent *Page 509 negligence of two separate and distinct agencies — which, operating contemporaneously, together constitute the efficient proximate cause of the injury inflicted, and without either one of which the harm would not have been done. But if two distinct causes are successive and unrelated in their operation they cannot be concurrent. One of them must be the proximate and the other the remote cause, and the law will regard the proximate as the efficient and responsible cause, disregarding the remote cause. 22 R. C. L. 128."
I am inclined to think that the charges given by the Court to the jury which are quoted in the foregoing able opinion by Chief Justice DAVIS are not entirely correct. And in fact the second charge appears to be positively erroneous, in that it invades the province of the jury, and also instructs them, in effect, that if the evidence showed that the conditions made and placed around the torn up bridge by the deceased and his co-workers were such that any reasonably careful driver of an automobile approaching the bridge from either direction and observing reasonable care as to speed and lookout ahead, would see the dangerous condition of the bridge in time to stop his car and avoid the injury, then the jury should find that there was no contributory negligence on the part of the deceased. It is entirely conceivable that all of the facts hypothesized in this charge might have been true, and yet if the deceased saw the approaching automobile and was in a position where he had reasonable time and opportunity to get out of the way and protect himself from danger, he might have been guilty of contributory negligence proximately contributing to his injury. In other words, the existence of the particular conditions described in the charge did not, as a matter of law, eliminate the question of plaintiff's contributory negligence from the case. It was held in Grand Trunk Ry. Co. v. Ives, 144 U.S. 408, *Page 510 12 S.C. 679, 36 L. ed. 485, cited in the majority opinion, that in determining whether the deceased was guilty of contributory negligence the jury are bound to consider all the facts and circumstances bearing upon that question, and not select one particular prominent fact or circumstance as controlling the case to the exclusion of all the others. It follows from this that the instructions to the jury should not conflict with the principle so announced. I think this is in harmony with our own decisions. See Mortellaro Co. v. A. C. L. Ry. Co., 91 Fla. 230, 107 So.2d 528, and cases cited.
But I am not at all clear that the error above pointed out caused any miscarriage of justice in this case. Even if, as testified by the truck driver (in conflict with plaintiff's witnesses), the deceased raised up and saw him just before the deceased was struck, and yet did not move out of the way, this was by no means absolute proof of contributory negligence. When a person is placed in sudden and imminent peril by the negligent act of another, and does or fails to do some act which he would not otherwise have done, and injury results, the negligent act which created the sudden peril may still be the real and proximate cause of the injury.
So also the negligent speed of the truck, under the peculiar circumstances of this case, and the failure of the driver to check it, appears to have continued to be the operative and proximate cause of the injury up to the very moment that the injury was inflicted, as in the case of Fla. Motor Lines v. Casad, 98 Fla. 720, 124 So.2d 180. See also Frazee v. Gillespie,98 Fla. 582, 124 So.2d 6. The verdicts in both of these cases were allowed to stand.
Not being entirely clear that, on the facts in this case, as disclosed by the evidence, the judgment of the court below *Page 511 should be reversed, I will not dissent from my associates in their conclusion that it should be affirmed.
On Re-hearing.