The opinion
ANGELLOTTI, J., concurring.
I concur: In view of the undisputed evidence, the plaintiff was driving his horse at a rate of speed faster than a walk over a street crossing, in violation of the terms of a city ordinance. As is clearly shown in the opinion, it mast be held that he was guilty of negligence in so doing, in other words, that he did not use
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ordinary care in approaching the car track on said crossing. The answer of the jury to the first interrogatory, “Did the plaintiff, in approaching the ear track on Turk Street, use ordinary care to protect himself from injury,” which was “yes,” is therefore in conflict with the uncontradicted testimony. This answer may well be attributed to the failure of the court to give the two requested instructions first discussed in the opinion, which, as is there shown, correctly stated the law. If the negligence of plaintiff in this regard contributed proximately to his injury, as it might well have done in view of the evidence, he could not recover, unless defendant was liable under the “last clear chance” doctrine. It is impossible for us to say, upon the record before us, that the verdict of the jury was not based upon the theory that plaintiff was not guilty of contributory negligence, rather than upon the last clear chance doctrine. Indeed there is absolutely nothing in the findings of the jury to indicate that they based their verdict upon the last clear chance doctrine, and the evidence is such upon the question of the motorman’s want of actual knowledge of plaintiff’s dangerous position, an essential element of that doctrine, as to make it extremely doubtful whether a finding of liability on that ground could be held to be sufficiently sustained. I think, therefore, that it is very clear that the refusal to give the requested instructions was prejudicial.
Upon the other questions discussed in the opinion, I concur in the views expressed by Justice Melvin.
Shaw, J., and Sloss, J., concurred.