CARTER, J. I dissent.
This is another last clear chance case that adds to the confusion in this field. The majority opinion erroneously states that the doctrine presupposes negligence by both plaintiff and defendant and then holds that instructions on negligence gave the .jury a clear picture of the circumstances under which the jury could find defendant driver of the truck, negligent under the last clear chance doctrine.
On the first proposition, the majority opinion states: “. . . the doctrine presupposes negligence on the part of both parties.” And: “Plaintiffs argue that negligence ‘may consist of the failure to avoid an accident under the last clear chance doctrine’; and where the jury is not instructed on that subject in a proper ease, it might find a party free from negligence, but if it were instructed on the subject it might find the same party guilty of negligence in that he had the last clear chance to avoid the accident and failed to exercise ordinary care to do so. However, plaintiff’s argument is based upon the erroneous theory that the last clear chance doctrine - changes the rules for the determination of the issue of negligence on the part of the respective parties. Such is not the case, as those rules remain precisely the same; and in order to impose liability upon a party under the last clear chance doctrine, the jury must find not only that such party was guilty of negligence proximately contributing to the happening of the accident, but must also find that all other necessary elements of the last clear chance doctrine were present. ’ ’
It is not the law that under the doctrine of last clear chance negligence of defendant is “presupposed” or that [127]the application of the doctrine has nothing to do with forming a basis for defendant’s negligence. It is well settled that under this doctrine there may have been no antecedent negligence on defendant’s part. His negligence may arise solely from his conduct after a situation is presented in which he must use care to avoid the accident, because he has the last clear chance to do so, even though he was not negligent prior to that time. Therefore the jury should be instructed on the doctrine or its equivalent to permit it to determine whether defendant was negligent in the light of the situation confronting him. The question is ably discussed: “But last clear chance cases are not so simple; the difference between the original and the final negligence of the parties must be taken into account. The plaintiff must be guilty of some original negligence by which he places himself in a position of danger; and the defendant, seeing plaintiff in such danger, must be guilty of some final negligence which proximately causes the injury. And if, at the last moment, either party can avoid the accident by the exercise of ordinary care, the law then disregards his prior misconduct, and deals with his behavior at the time the injury is done. In this event, the prior misconduct is said to be the cause of the danger, and the later misconduct the cause of the injury. . . .
“In last clear chance cases, the original negligence of the injured party in getting himself into a position of peril, is merely an attendant condition, and not the proximate cause of the injury, . . . and the final negligence of the 'defendant, after discovering plaintiff in a position of danger, is a new and independent negligence, and the proximate cause of the injury.”
“Let us sketchily repeat those special conditions: first, that the plaintiff has been guilty of original negligence of some kind; second, that by reason of such original negligence he, the plaintiff, is in a position of danger; . . . fourth, that the defendant then has an opportunity to avoid injuring the plaintiff, by exercising ordinary care under the circumstances; and fifth, that the defendant fails to exercise such ordinary care, or in other words, is guilty of some final negligence.
“That is to say, the defendant’s duty under the last clear chance doctrine, to exercise final care [emphasis added] to avoid the accident, does not arise until he discovers plaintiff in a position of danger. . . . But even if he was guilty of original negligence, that fact alone will not make him liable under the last clear chance doctrine; for just as plaintiff’s [128]original negligence is merely an attendant condition, and not the proximate cause, of the injury, ... so, on principle, it would seem that defendant’s original negligence should likewise be considered an attendant condition, and not the proximate cause, under the last clear chance doctrine. As soon, however, as defendant discovers plaintiff in a position of danger, he is then bound to exercise ordinary care to avoid the accident; and if, under all the circumstances, he does exercise such ordinary care, he is not liable; but if, under all the circumstances, he fails to use ordinary care from that time on, he may be held guilty of final negligence [emphasis added], and the plaintiff may invoke the doctrine. It then becomes the function of the court or jury to determine whether or not, under all the circumstances, the defendant, after discovering plaintiff in a position of danger, was guilty of such final negligence [emphasis added].”
“One says that the antecedent negligence of one or both parties is immaterial; that ‘the law deals with their behavior in the situation in which it finds them at the time the mischief is done, regardless of their prior misconduct’; and that the prior misconduct is the cause of the danger only, while it is the later misconduct that is the cause of the injury.” (Hall, Last Clear Chance, pp. 4, 82, 212.)
While some of the older cases said that for the doctrine to apply defendant’s negligence is presupposed (see cases collected 19 Cal.Jur. 651-652) other cases and recent ones have pointed out that defendant’s negligence, and hence liability, may arise from his conduct after the last clear chance situation is presented to him, the proposition being stated in the language that plaintiff’s negligence is remote and the proximate cause of the injury is defendant’s negligence in failing to avert the injury. It is stated in Doherty v. California Nav. & Imp. Co., 6 Cal.App. 131, 137 [91 P. 419], quoting from Wheeler v. Grand Trunk Ry. Co. of Canada, 70 N.H. 607 [50 A. 103, 54 L.R.A. 955] : “ ‘If due care on the part of either at the time of the injury would prevent it, the antecedent negligence of one or both parties is immaterial except it may be as one of the circumstances by which the requisite measure of care is to be determined. In such a case the law deals with their behavior in the situation in which it finds them at the time the mischief is done, regardless of their prior misconduct. The latter ... is the cause of the danger, the former is the cause of the injury. . . .’ ” In Sills v. Los Angeles Transit Lines, 40 Cal.2d 630, [129637] [255 P.2d 795], the court said: “. . . where a person sees another in a position which is in fact dangerous, he may not rely upon dullness to excuse him from not realizing the danger of the position . . . ; and if he sees the dangerous situation he must use reasonable diligence in analyzing the same.” In Bonebrake v. McCormick, 35 Cal.2d 16, 19 [215 P.2d 728] : “. . . the boy by his own negligence put himself in a position of danger from which he could not escape by the exercise of ordinary care, that defendant knew of the boy’s peril, that she had the last clear chance to avoid the accident by the exercise of ordinary care but failed to do so, and that the boy was killed as a proxwnate result of such failure.” (Emphasis added.) This court said in Girdner v. Union Oil Co., 216 Cal. 197, 200 [13 P.2d 915] established the fact that when plaintiff approached and was proceeding across the path of the oil truck, and up to the time of the collision, he did not see and was totally oblivious of the approach of the truck, and the danger that confronted him; that defendant Elam first saw plaintiff’s car some forty or fifty feet away from the intersection; that he saw plaintiff looking straight ahead, in an opposite direction, and not slowing the speed of his automobile; that Elam was traveling at a speed of twenty miles an hour and could have stopped his truck almost immediately, and within a distance of a few feet; that he had ample time and sufficient distance, at least twenty-five to thirty-five feet, in which to stop and avoid coming in contact with plaintiff’s car, but failed to do so.” ‘ ‘ The real issue in cases of the character here involved is not whose negligence came first or last, but whose negligence, however it came, was the proximate cause of the injury. . . .
“If defendant is not able to avoid injuring plaintiff in the exercise of ordinary care, the plaintiff’s original negligence continues to be the proximate cause of his own injury, which bars recovery. If, on the other hand, defendant is able to avoid injuring the negligent plaintiff and negligently fails to do so, plaintiff’s original though continuing negligence only remotely contributes to the injury and is not the proximate cause thereof, and hence the applied doctrine, by its own principles, establishes the right of plaintiff to recover notwithstanding the fact that his original negligence would, by its continuing nature, bar a recovery if the doctrine were not applicable.” (Emphasis added; Girdner v. Union Oil Co., supra, pp. 201-202, 203.) Similarly in Center v. Yellow Cab Co., 216 Cal. 205, 208 [13 P.2d 918], it was said: “If the [130]elements of the last clear chance doctrine are present, and the doctrine applies, the contributory negligence of the party injured is not the proximate cause, as the negligence of defendant, being later, constitutes the sole proximate cause.” (Emphasis added.) In Daniels v. City & County of San Francisco, 40 Cal.2d 614 [255 P.2d 785], and the Sills, Bone-brake, Girdner and Center cases there was no antecedent negligence on defendant’s part. The sole negligence with respect to him was his conduct after being presented with a last clear chance situation.
The majority uses the fallacious premise above discussed to conclude that since plaintiff lost on the cross-complaint, and there were adequate instructions on the subject of defendant’s duty after he was confronted with the plaintiff’s perilous position, the failure to give an instruction on last clear chance was not prejudicial error. Those instructions did not embody the elements of last clear chance; they did not advise the jury that if defendant could have avoided injuring plaintiff by the exercise of ordinary care after discovering plaintiff’s peril then plaintiff could recover. Certainly plaintiff was entitled to have his theory of liability presented to the jury with respect to his ease regardless of the cross-complaint. Daniels v. City & County of San Francisco, supra, 40 Cal.2d 614, and Sills v. Los Angeles Transit Lines, supra, 40 Cal.2d 630, contrary to the majority opinion, are clearly applicable and show that the instructions given did not cure the error in refusing the last clear chance instruction. In the Daniels case it is said: “Defendants submit that even though the court erroneously refused to instruct on the last clear chance doctrine, nevertheless no prejudice resulted to plaintiffs because (1) the doctrine was covered by other instructions given by the court and (2) the general verdict of the jury imports findings in favor of defendants on all material issues so as to preclude plaintiffs from raising an objection based on that theory of recovery. Neither point is well taken.
“The instructions cited by defendants in nowise purported to include the elements of the last clear chance doctrine. Rather they were directed only to the duty of the bus driver to ‘use reasonable prudence in analyzing the . . . situation’ confronting him so as to avoid colliding with plaintiffs’ automobile. Moreover, the court in its other instructions plainly refuted any application of the last clear chance doctrine by charging the jury that any negligence on the part of either [131]Mrs. Daniels or her guest, Mrs. Smith, would bar a recovery, though a necessary tenet of the doctrine is the presence of the plaintiff’s negligence. [Citations.] It is the duty of the court to instruct on every theory of the case finding support in the evidence.” (Emphasis added.) In the Sills case, it is said: “Defendants finally contend that even though it was improper for the trial court to have refused the requested instruction on the last clear chance doctrine, such refusal was not prejudicial error. In support of their position, defendants urge that every major element of that doctrine was covered by other instructions. Two of the cited instructions concerned proximate cause, one being the usual definition thereof and the other referring to a ‘violation of law’ as ‘of no consequence unless it was a proximate cause’ of the injury. The third cited instruction was a lengthy declaration of the law relating to the right-of-way at an intersection, and the duty to exercise ordinary care so as to avoid a collision. Manifestly, such instructions did not purport to deal with the last clear chance doctrine and cannot be deemed adequate for submitting to the jury the question of defendants’ liability upon that theory. Moreover, at defendants’ request the jury was expressly charged, without qualification, that contributory negligence would bar a recovery, and no declaration was made covering plaintiff’s theory of his right to prevail under the last clear chance doctrine. [Citation.] In these circumstances defendants unavailingly argue the proposition that the erroneously refused instruction should not be deemed prejudicial because the principle therein stated was fully and fairly covered in other instructions to the jury. ’ ’ (Sills v. Los Angeles Transit Lines, supra, 40 Cal.2d 630, 639.)
The majority opinion holds, in effect, that any time the defendant files a cross-complaint plaintiff is not entitled to a last clear chance instruction although the facts justify it. No authority is cited for that proposition and I believe there is none. There is no basis for it.
I would, therefore, affirm the orders granting a new trial.
Respondents’ petition for a rehearing was denied March 22, 1955. Carter, J., was of the opinion that the petition should be granted.