Rowe

This action is brought by plaintiff to recover damages from defendant for the alleged negligent killing of plaintiff’s■ husband by one of defendant’s passenger trains at a street crossing in the city of San Bernardino. At the conclusion of plaintiff’s evidence, defendant’s motion for a nonsuit was granted. The plaintiff appeals from the judgment which followed.

The only question presented arises upon the order granting the nonsuit. It is contended by appellant that, while the negligence of the deceased must be admitted to have contributed to his death, yet the defendant’s engineer had notice of the negligence of the deceased in time to have avoided the killing if he had used proper care and stopped the train. The facts of the case are in many respects similar to the facts in the case of Green v. Los Angeles Terminal Ry. Co., 143 Cal. 31 , [ 101 Am. St. Rep. 68 , 76 Pac. 719 ], and may be briefly stated as follows:

The deceased was approaching the defendant’s track from the west on the sidewalk which traversed the south side of the street. The defendant’s locomotive with a train of cars attached was approaching from the northwest, the same point to which the deceased was going,…

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 Pac. 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…