I respectively dissent from the majority opinion in this case in two material respects, to-wit:
(1) On the finding of fact that plaintiff and her escort, Mr. Fitzgerald, did not stop after entering the street for the purpose of crossing over; and
(2) Awarding a recovery herein, notwithstanding plaintiff's own gross negligence, by applying the doctrine of the last clear chance.
As concerns my dissent on the question of fact mentioned, the testimony of plaintiff, herself, and of Mr. Fitzgerald, a witness for her, should be controlling over that of the witness, King. The testimony of these two parties is unequivocal on the subject. We here quote pertinent parts of it given by plaintiff:
"Q. What, if anything, did you do while you were crossing the bridge or as you stepped into the street? A. We turned there and were going east; crossed the bridge, stopped and waited for two cars to pass on down Davis Street. * * *
"Q. What were you doing when you were hit? A. I was standing waiting for those other cars to get by.
"Q. Where was Mr. Fitzgerald when you were hit? A. He was across the bridge behind me; he was standing just behind me.
"Q. Did you see or know that this car was going to hit you? A. No, sir.
"Q. What, if anything, did Mr. Fitzgerald do just at the time or about the time you were hit? A. I remember he holloed; that's all I remember. * * *
"Q. You saw them coming and stopped to let them pass? A. Yes, sir.
"Q. Mrs. Oliphant, isn't this what happened — you saw those cars coming and you stopped, naturally, to let them pass, and as soon as they passed you stepped out and Mr. Fitzgerald holloed to look out, and then the car hit you? A. I didn't step out; I was standing practically still."
While a patient in a hospital in Vicksburg, Mississippi, she signed a statement covering the immediate facts of the accident, in which she said:
"There is a narrow wooden bridge there, and we had walked across it to the end when we saw two cars going toward town. We stopped at the end of the bridge and waited for them to pass, and then I imagine I made one step, when Mr. Fitzgerald holloed to me and told me to look out for the car. * * *
"I never did see the car that hit me, as I was watching the other two."
Mr. Fitzgerald gave the following testimony:
"Q. You say you looked to the north? A. Yes, sir.
"Q. You didn't see anything? A. Well, I saw the two cars coming from the south.
"Q. What did you do? A. We stopped and waited until they passed; one was about, I suppose, thirty feet behind the other.
"Q. Which way did those cars pass? A. They came north until they got to the corner, and they turned east down the street in front of the church house, and after they passed on, she started to take a step, made one step, and I started to take a step when this light flashed and I holloed `Look out, you're going to get hit.' In just an instant it had swept her up, ran against her. * * *
"Q. You both looked out and saw those two cars coming? A. Yes.
"Q. And then as soon as those two cars passed, you and Mrs. Oliphant started out into the street? A. Certainly, started to cross."
In article five (5) of the petition, it is averred that plaintiff, after going one or two steps into the street "stopped to permit two cars, going north on Davis Street, to pass."
Plaintiff and Fitzgerald each testified that as they entered the street they looked both ways for traffic and observed only the two cars on the opposite side of the street, approaching from their right; that they stopped to allow these cars to pass before proceeding further; that they did not again look to their left to ascertain if any cars were approaching. It is certain when struck and for an appreciable time prior, plaintiff was looking only toward the east, the direction she purposed to travel. I am satisfied that as soon as the two cars referred to passed, she, as Fitzgerald says, and as she in the written statement, said, immediately *Page 528 stepped forward. It was then she was struck by the right fender of the Chaney car. Had she stood still for only an additional split second, she would not have been injured.
Young Chaney never saw plaintiff at all until he struck her. He did see Fitzgerald. Plaintiff was at least ten feet into the street and not in the intersection as she contends. The Chaney car was following a course that led it close to but surely beyond her.
Having attempted to cross the street at a point other than an intersection, the strictest care should have been observed by plaintiff; more so than is required at an intersection. She should have observed the Chaney car, with lights brightly burning, at her left. She would have done so had she slightly looked in that direction.
It is my belief that the doctrine of the last clear chance does not here apply, because plaintiff was standing still near the center of her side of the street and would not have been struck had she held her ground for only a fraction of a second longer. She left a place of relative safety and stepped into the path of the Chaney car when it was impossible for the driver to avert striking her. To apply the doctrine to such facts throws upon the motorist entire responsibility for averting accidents in such a case. Plaintiff's step forward was the immediate, direct and proximate cause of the accident. *Page 600