At the trial, the court rendered judgment against plaintiff upon his petition and preliminary statement to the jury which disclosed the above facts. Plaintiff brought error.
Mason, J.
Finally it is contended in behalf of the plaintiff that, even admitting his own want of care to have been such as would ordinarily bar a recovery, still he had a right to submit to the jury the question whether the employees in charge of the engine by the use of reasonable diligence could have discovered his negligence in time to avert the accident, and that an affirmative answer would have entitled him to a verdict.
In a number of cases it has been held that if the engineer by the exercise of reasonable diligence could have learned that danger was imminent but did not do so, the liability of the company will be determined in all respects as though he had in fact become aware of it, the constructive knowledge being apparently deemed the equivalent of actual knowledge. It is difficult or impossible to reconcile the decisions upon this and related questions, or to derive from them any generally accepted statement either of principle or result. Many of them are collected and discussed in chapter ix of volume i of Thompson’s Commentaries on the Law of Negligence, especially in sections 222 to 247.
There seems, however, to be no sufficient reason why the mere fact that a defendant is negligent in failing to discover a plaintiff’s negligence, or his danger, should in and of itself exclude all consideration of contributory negligence. Take the not unusual situation of a train being negligently operated, let us say by being run at too high a speed and without proper signals of warning being given. Now, any one injured as a result of such negligence has prima facie a right to recover. But, if his own negligence has contributed to his injury, then ordinarily his right is barred. How is the situation altered if the railroad employees add to their negligence in regard to speed and signals the negligence of failing to keep a sufficient lookout? The negligence is of the same sort; and, if the contributory negligence of the person injured prevents a recovery when but the two elements of negligence are present, consistency requires that it should have the same effect although a third element is added. If in the present case the plaintiff was entitled to recover in spite of his own negligence it must be because the order of its occurrence with respect to that of the defendant made the latter the proximate cause of the injury. This indeed is his contention, and to support it reliance is placed upon the following text, which was quoted with approval in Railway Co. v. Arnold, 67 Kan. 260, 72 Pac. 857, and the substance of which is to be found also in volume xx of the American and English Encyclopædia of Law, at page 137:—
“And upon the principle that one will be charged with notice of that which by ordinary care he might have known, it is held that if either party to an action involving the questions of negligence and contributory negligence should, by the exercise of ordinary care, have discovered the negligence of the other, after its occurrence, in time to foresee and avoid its consequences, then such party is held to have notice; and his negligence in not discovering the negligence of the other, under such circumstances, is held the sole proximate cause of a following injury.” (7 A. & E. Encycl. of L. 387.)
This may be accepted as a correct statement of a principle of universal application, according with both reason and authority, provided the words “after its occurrence” be interpreted to mean after the person concerned had ceased to be negligent. The rule that under the circumstances stated the neglect of one party to discover the omission of the other is to be held to be the sole proximate cause of a resulting injury is not an arbitrary but a reasonable one. The test is, What wrongful conduct occasioning an injury was in operation at the very moment it occurred or became inevitable? If just before that climax only one party had the power to prevent the catastrophe, and he neglected to use it, the legal responsibility is his alone. If, however, each had such power, and each neglected to use it, then their negligence was concurrent and neither can recover against the other. As is said in the paragraph from which the foregoing quotation is made, “it is only when the negligence of one party is subsequent to that of the other that the rule can be invoked.” In a note printed in volume ii of the supplement to the American and English Encyclopædia of Law, at page 64, many recent cases are cited bearing on the subject, and it is said:—
“This so-called exception to the rule of contributory negligence (i. e., the doctrine of ‘the last clear chance’) will not be extended to cases where the plaintiff’s own negligence extended up to and actually contributed to the injury. To warrant its application there must have been some new breach of duty on the part of the defendant subsequent to the plaintiff’s negligence.”