Young

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 371 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 372 This action was brought by the father and mother of Fred C. Bluhm to recover damages for the death of their son. The father has died and the special administrator of his estate has been substituted. Fred C. Bluhm, while riding a motorcycle along Main Street, in the city of Woodland, across the railway track of the defendant company, was struck by a caboose, which was being pushed by an engine, and killed. Joined with the defendant company were G.E. Waite, conductor; W.H. Jones, engineer, and G.C. Conley and B.C. Neibling, brakemen, of the train. The case was tried by a jury and a verdict rendered against all of the defendants., As a part of the plaintiffs' case a diagram of the scene of the accident was introduced in evidence. From this it appears that crossing Main Street at and near the place of the accident were two tracks of the railway company, one the main-line track and another a passing…

I dissent on the ground that while the statement in the first instruction discussed in the main opinion, "Nor is it [contributory negligence] to be inferred from the evidence offered by the plaintiff," is erroneous, so palpably so as to make it probable that it was given wholly by inadvertence, and while, in fact, the decedent was plainly guilty of contributory negligence and the jury should have been so instructed, yet the facts of the case are such as to show unmistakably that the verdict was a just one under the last clear chance rule, and to make it evident that the jury, if there is any presumption that they were reasoning beings and acted as such, reached their verdict because of the liability of the defendants under that rule without being affected by the issue of contributory negligence which was erroneously submitted to them. More than this, I do not see how it is possible upon the facts of this case to say truly that the errors relied upon to justify the reversal, of which those concerning the issue of contributory negligence are alone substantial, "resulted in a miscarriage of justice" as required by section 4 1/2 of article VI of our constitution. The verdict certainly…

I concur in the judgment and in what is said in the main opinion on the question of contributory negligence, and the instructions given the jury thereon. I am not in entire accord with all that is said in the opinion in regard to the last clear chance doctrine, and believe that the instruction on that question was substantially correct and not rendered prejudicially misleading by the use of the words, "through fear, excitement, or loss of self-control." I am further of the opinion that there was sufficient evidence to sustain a verdict *Page 384 based on the last clear chance doctrine. To my mind, however, it cannot fairly be held that the evidence was such as to require a verdict for plaintiff on that ground, or, in other words, that the evidence was such that defendants are liable under said doctrine as matter of law. This being so, a reversal cannot be avoided, for it is impossible to know upon what theory the verdict was rendered, or that the jury ever concluded that the facts existed which would have warranted a verdict under the last clear chance doctrine.

In a petition for rehearing it is stated that the learned trial judge insists that no such instruction on contributory negligence as the one first discussed in the opinion was ever given, that instead of the words, "nor is it to be inferred," the instruction actually given commenced with the words, "unless it may be inferred." [10] So changed, the instruction would be a correct statement of the law. The settled record on appeal is, in the light of this statement, incorrect, but even if the record in this behalf could now be corrected to show the truth, it would make no difference in the result. [11] The gist of the opinion in this matter is that the question of contributory negligence should not have been submitted to the jury, the deceased *Page 388 being clearly guilty of contributory negligence as a matter of law. There were several instructions on the question of contributory negligence and that question was submitted to the jury. The application for a rehearing is denied. Angellotti, C. J., Shaw, J., Wilbur, J., and Kerrigan, J., pro tem., concurred.