Last Clear Chance. If the plaintiff, by or dinary care, could have avoided the effect of the negligence of the defendant, he is guilty of contributory negligence, no matter how careless the defendant may have been at the last or any preceding stage ; Tuff v. Warman, 2 C. B. N. S. 740 (on appeal, 5 C. B. N. S. 573). When the defendant was driving carelessly along the highway, and ran into and injured the plaintiff's donkey, which was straying improperly on the high way with his fore feet fettered, it was held that the plaintiff's negligence had not con tributed to the accident ; Davies v. Mann, 10 M. & W. 546. To this case the doctrine of the last clear chance is generally attributed. It is that the party who last has a clear op portunity of avoiding an accident, notwith standing the negligence of the other party Ls considered responsible for it ; 2 L. Quart. Rev. 507; Grand T. R. Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485 ; Thomp son v. Rapid Transit Co., 16 Utah, 281, 52 Pac. 92, 40 L. R. A. 172, 67 Am. St. Rep. 621; Pilmer v. Traction Co.,•14 Idaho, 327, 94 Pac. 432, 15 L. R. A. (N. S.) 254, 125 Am. St. Rep. 161.
If the plaintiff could by the exercise of reasonable care, at or just before the hap pening of the injury to him, have avoided the same, he cannot recover ; Tuff v. War man, 5 C. B. N. S. 573 ; Barnum v. Terpening, 75 Mich. 557, 42 N. W. 967; Willard v. Swan sen, 126 Ill. 381, 18 N. E. 548. "The true ground of contributory negligence being a bar is that it is the proximate cause (or `decisive' cause) of the mischief ; and negli gence on the plaintiff's part, which is only part of the inducing cause (i. e. a `condi tion,' not a `cause'; Whart. Negligence) will not disable him" ; Poll. Torts 434; and it "would seem that a person who has by his own act or default deprived himself of or dinary ability to avoid the consequences of another's negligence, can be in no better po sition than if, having such ability, he had failed to avoid them ; unless, indeed, the other has notice of his inability in time to use care appropriate to the emergency ; in which case the failure to use that care is the decisive negligence." Poll. Torts 434. To make this doctrine applicable, it must clearly appear that the negligence of one person was subsequent to that of the other; The Steam Dredge No. 1, 134 Fed. 161, 67 C. C. A. 67, 69 L. R. A. 293. Where the neg ligence of each party was the same in char acter, time and duration, and equally active in causing the Injury, the rule does not ap ply; Cleveland, C., C. & St. L. R. Co. v. Gahan, 24 Ohio Cir. Ct. R. 277.
"Ultimate negligence" is the negligence of the defendant which, though anterior to the plaintiff's negligence, makes the defendant liable if in the result he could by the exer cise of ordinary care have avoided the mis chief ; 13 Ontario L. Rep. 423; Atchison, T. & S. F. R. Co. v. Baker, 21 Okl. 51, 95 Pac. 433, 16 L. R. A. (N. S.) 825. The doctrine of last clear chance cannot be applied in an admiralty case; The Steam Dredge No. 1, 134 Fed. 161, 67 C. C. A. 67, 69 L. R. A. 293. The doctrine has been held not to apply where an intoxicated person is killed by an electric car whose head light can be seen 800 feet away and would have been sufficient warning to a sober man of the approach of the ear ; Vizacchero v. Rhode Island Co., 26 R. I. 392, 59 Atl. 105, 69 L. R. A. 188. See Herrick v. W. Power Co. (Wash.) 134 Pac. 934.
A street car company is liable for running down a, pedestrian who is walking negligent ly along the track where the motorman is inattentive and the pedestrian fails to hear the approach of the car because of noises made by other cars on other tracks ; Indian apolis, T. & T. Co. v. Kidd, 167 Ind. 402, 79
N. E. 347, 7 L. R. A, (N. S.) 143, 10 Ann. Cas. 942. A railroad company whose yard is customarily used as a thoroughfare with knowledge of the company, is liable for the death of one who is himself negligent, if those in charge of a train could have stopped it after the person was knocked down, but before he was killed ; Teakle v. R. Co., 32 Utah, 276, 90 Pac. 402, 10 L. R. A. (N. S.) 486.
Where one, knowing of the frequent pas sage of cars, goes on the tracks for the purpose of repairs and removing dirt, and is struck and killed, the company is not liable, although the motorman does not sound the gong in accordance with the requirements of a municipal ordinance; Brockschmidt v. R. Co., 205 Mo. 435, 103 S. W. 964, 12 L. R. A. (N. S.) 345; and a fortiori where the locomotive en gineer used every effort to avert the acci dent; Hoffard v. R. Co., 138 Iowa, 543, 110 N. W. 446, 16 L. R. A. (N. S.) 797; but the company is liable to its employes if it • is shown that the train was running at an ex traordinary and illegal rate of speed and not under full control as required by the compa ny's rules; Neary v. R. Co., 37 Mont. 461, 97 Pac. 944, 19 L. R. A. (N. S.) 446. If an employe is lying helpless on the track as the result of being struck by lightning, and if those in charge of a train might have discov ered his peril by the exercise of proper care in time to avoid the injury, the company is liable; Sawyer v. R. & L. Co., 145 N. C. 24, 58 S. E. 598, 22 L. R. A. (N. S.) 200.
Where a locomotive was run along the public street of a city at an unlawful rate of speed and no signal was given of its ap proach and no outlook was kept, and as a result a pedestrian is injured, the defence of contributory negligence is not available, al though the employes did not know of the presence of the person injured; Atchison, T. & S. P. R. Co. v. Baker, 79 Kan. 183, 98 Pac. 804, 21 L. R. A. (N. S.) 427; likewise a rail road company is liable for injuries to a per son who is negligently walking on its trestle, if those in charge of the train might, in the exercise of ordinary care, have discovered his peril and avoided the accident ; Bogan v. R. Co., 129 N. C. 154, 39 S. E. 808, 55 L. R. A. 418.
Although one is negligent in attempting to cross a track in front of a street car, his act is not the proximate cause of a resulting collision, if the motorman, upon seeing his design, becomes confused and increases in stead of decreases the speed of the car ; Smith v. Ry. & Lighting Co., 80 Conn. 268, 67 Atl. 888, 17 L. R. A. (N. S.) 707.
Although a company's employes may be negligent, after removing an intoxicated pas senger from their train, in placing him up on a flight of steps down which he subse quently falls, to his injury, the jury may reasonably find that intoxication Is the di rect and proximate cause of the injury ; Black v. R. Co., 193 Mass. 448, 79 N. E. 797, 7 L. R. A. (N. S.) 148, 9 Ann. Cas. 485.
A passenger alighting from a street car who immediately crosses the street and steps upon a parallel track without looking for an approaching car is negligent, but such negligence does not relieve a street car com pany from liability for injuries if those in charge of the other car, in the exercise of ordinary care, could have discovered his peril and averted the injury; Louisville Ry. Co. v. Hudgins, 124 Ky. 79, 98 S. W. 275, 7