Since the opinion by Mr. Chief Justice DAVIS was filed in this case, which was on April 22, 1933, and in which I concurred, my views concerning the treatment of the case insofar as the opinion discusses the doctrine of the "last clear chance" have changed in the following particulars: In the first place the discussion of the doctrine of the "last clear chance" as applied to the circumstances of the case at bar is wholly unnecessary and can lead to no result but confusion in the public mind as to its application in a given case; Secondly, the rule and the reasons for it have not been generally agreed upon by the courts when endeavoring to apply it; Thirdly, there are no less than five divergent theories which have been discussed and urged as affording the ground for the necessity of such a rule; Fourthly, whether it may ever be invoked against the plaintiff, the injured party, is by no means settled by the decisions or the logic underlying the rule; Fifthly, the doctrine was not discussed nor even mentioned in the case of Georgia, F. A. R. Co. v. Cox 75 Fla. 714,79 Sou. Rep. 276; Sixthly, the statement in the opinion that "The party who last has a clear opportunity of avoiding an accident, notwithstanding the negligence of his opponent, is considered solely responsible for it," and that is "a simple statement of the doctrine of 'the last clear chance' " is not an *Page 513 accurate summing up of the doctrine nor the reasons underlying it.

Contributory negligence by the plaintiff's decedent in the case at bar would preclude her recovery. Perceiving imminent danger to himself and failing to get out of its way is nothing but contributory negligence, a voluntary sacrifice of himself which would preclude recovery by him for injuries sustained even against a railroad corporation under the statute notwithstanding the defendant was guilty of negligence. The rule of the "last clear chance" was founded in considerations of public policy resting upon the government's dependence upon its citizenship, and its protection of a citizen: in the uninterrupted enjoyment of his personal security which he has as his birthright and in which he is entitled to the fullest protection society can give. Indianapolis Street R. Co. v. Bolin, 39 Ind. App. 169, 78 N.E. Rep. 210. So that in cases where the injured party is negligent to the degree which would ordinarily preclude his recovery for injuries sustained, he may nevertheless recover if the defendant was without negligence but, perceiving the danger in which the plaintiff's negligence had placed him, the defendant might still by the exercise of reasonable care have avoided injuring the plaintiff and did not do so.

In determining whether the defendant could have avoided injuring the plaintiff the rule of the last clear chance applies, that is to say, did the defendant after perceiving the plaintiff's danger have a "clear chance" under the circumstances to avoid the injury? If he did have such a chance and failed to avail himself of it to avoid the injury the plaintiff may still recover notwithstanding even his gross negligence in placing himself in a position of danger.

It was in this humanitarian theory that the rule of the last clear chance was founded. The application of it to the *Page 514 plaintiff reverses the reason and policy on which the rule rests. It is equivalent to saying to an injured person that although you were in a place where you had a right to be, where your legitimate labor required you to be, and danger approached you unobserved, caused by the wanton recklessness of the person injuring you, although you are without fault in being where you are, yet if you fail to appreciate your impending danger and have a reasonable time by the exercise of physical agility and mental alertness which an average normal person is supposed to possess but of which nature at the beginning of your existence or through the processes of time has deprived you and scramble out of the way of the unlawful force put in motion by a wantonly careless defendant you cannot recover. Such an interpretation of the doctrine is a perversion of it. It binds the injured person with fetters intended for the wrong doer, the person committing the injury.

In the State of Georgia the plaintiff is prohibited from recovering if he could have avoided the defendant's negligence. But that rule, which is the application of the rule of last clear chance to the plaintiff, is of statutory authority in that State. See Smith v. Central Railroad and Banking Co.,82 Ga. 801, 10 S.E. Rep. 111.

For instances of the application of the doctrine to the defendant in cases where the plaintiff's own negligence placed him primarily in a dangerous situation and the defendant was not negligent primarily but might have reasonably discovered the defendant's danger in time to avoid the injury by the exercise of reasonable care, see Inland and Seaboard Coasting Co. v. Tolson, 139 U.S. 551, 33 L. Ed. 270,11 Sup. Ct. Rep. 653; Grand Trunk Ry. Co. v. Ives, 144 U.S. 408,36 L. Ed. 485, 12 Sup. Ct. Rep. 679; Texas P. Ry. Co. v. Nolan, 11 C.C.A. 202, 62 Fed. Rep. 552. *Page 515

In that case the doctrine of Davies v. Mann, 10 Mees. W. 546, (12 L. J. Exch., N.S., 10, 6 Jr. 954), was not applied. Louisville N. R. Co. v. East Tennessee, V. G. Ry. Co., 9 Cow. C. A. 314, 60 Fed. Rep. 993, in that case it was applied, and in each case the plaintiff was permitted to recover. New York, N.H. H. R. Co. v. Kelly, 35 c. C. A. 571, 93 Fed. Rep. 745, in which the doctrine of "last clear chance" was not applied to a "mere omission" to discover plaintiff's danger, and holding that such omission cannot be regarded as wantonness.

Frazer v. South North Ala. R. R .Co., 81 Ala. 185,1 South Rep. 85, where the negligence of the plaintiff, or the deceased, originally placed him in danger and such negligence was continuing there was no occasion for the application of the doctrine and recovery could be upheld only on the ground that the act of the defendant was wanton or wilful; Hot Springs St. Ry. Co. v. Johnson, 64 Ark. 420, 42 S.W. Rep. 833; L. R. F. S. Railway Co. v. Finley, 37 Ark. 569; Flynn v. S. F. S. J. R. Co., 40 Cal. 14. In California the doctrine seems to be applied in cases where defendant failed to exercise reasonable care to observe plaintiff's danger as well as failure to exercise reasonable care to avert it. Oliver v. Denver Tramway Co., 13 Colo. App. 543, 59 Pac. Rep. 79; Palmer v. The Chicago, St. Louis and Pittsburg R. Co., 112 Ind. 250, 14 N.E. Rep. 70; holding to the wilful or wanton negligence theory of which the defendant be guilty after discovering plaintiff's danger. Chicago West Division Ry. Co. v. Ryan, 131 Ill. 474,23 N.E. Rep. 385; Union Pac. R. W. Co. v. Rollins, 5 Kan. 167; L. and N. R. Co. v. Earl, 94 Ky. 368, 22 S.W. Rep. 607; Kramer v. N. O., City Lace R. R. Co., 51 La. Ann. 1689, 26 Sou. Rep. 411; O'Brien v. McGlinchy, 68 Me. 552; Murphy v. Deane,101 Mass. 455, 3 Am. Rep. 390. *Page 516

In that case the doctrine was seemingly applied to the plaintiff in case where her negligence and that of the defendant were contemporaneous and the plaintiff's negligence continues to the point of avoiding the accident where it was reasonably possible for her to do so. Such citations may be continued until they embrace all the jurisdictions of this country. It will serve no beneficial purpose to continue them. They demonstrate that the "last clear chance" doctrine grew out of the rule of contributory negligence and relieves one from the hardships of its unyielding and inflexible terms. Many cases have transpired in which the plaintiff although negligent should not thereby be denied relief if the defendant might in reason have avoided the injury.

The difficulty arises in applying the doctrine to the particular group of facts. In the case at bar, however, there is no occasion for the application of the doctrine to the defendant because its negligence was the primary factor in the case and continued throughout the entire transaction up to and including the killing of the plaintiff's deceased. If in a case like this by any sort of reason the doctrine may be deemed applicable to the plaintiff the impracticability of its application is most apparent. At what moment of time, or at what point on the disastrous course of the defendant's truck between the curve and the point of impact upon the plaintiff's deceased, occurred the last clear chance for the deceased to have avoided the impending death, would depend upon accurate information as to the speed of the truck, the moment of apprehension by the deceased and his particular mental and physical alertness and ability. In applying the doctrine to the defendant no such difficulty is met because the driver of the truck should have had his machine under control 180 feet away from the point where the deceased was struck, and it was the defendant's duty while driving an *Page 517 automobile truck upon the highway to be constantly upon the look out for pedestrians upon it and persons whose duty required them to be upon it engaged in its maintenance, and the duty was emphasized in this case by the fact that in violation of the duty cast upon the, defendant by the statute to have the truck under complete control at the curve the driver continued the unreasonable speed of the truck until it reached the bridge and the injury was committed.

I agree to the conclusion reached but do not deem the discussion of the "last clear chance" doctrine as to the possibility of its application to the plaintiff in such cases as this to be necessary.