The opinion
CONCURRING OPINION OF JUDGE, WILLIAM W. WESTERFIELD.
WESTERFIELD, J.
The unfortunate condition of the plaintiff in this case is in my opinion solely attributable to the fault of defendant herein. As a carrier of passengers the law imposes the duty upon this defendant of exercising the highest degree of care for the safety of its passengers, as stated by our Supreme Court, “the highest degre of care reasonable to be expected from human vigilance and foresight”. Notwithstanding this great responsibility, the employees of the street railway company in this case took no precaution, exercised no care and made no effort to prevent injury to its passengers as a result of the dangerous proximity of the enormous concrete conduits to its tracks and cars. The car was equipped with doors which should have been closed, certainly during the short interval required to pass the conduits. The car could have been slowed down to a snail’s pace while passing the dangerous block. A re-routing of the cars on this line was quite possible so as to escape the conduits altogether. Passengers could have been warned of the danger. The habit of geting on the steps preparatory to alighting shown to have been indulged in by passengers could have been interrupted for the single block in which the conduits were placed. Counsel for this defendant frankly admits negligence, as well he might, for it is as plain as a pike staff. But it is said the plaintiff was also negligent and his negligence the proximate cause of the accident. He saw or should have seen the conduits. He knew or should have known of the danger involved in getting on the steps under the circumstances. Plaintiff says he didn’t see the conduits when getting off the platform and on the step. He admits having seen them on another day of the week they were lying there. It is true that in getting off the platform he faced the conduits and that if he looked ahead of him while on the platform he might have seen them. But he says he didn’t look ahead and it was not his duty to do so. Such view of the conduits as was afforded him in stepping from the platform was instantaneous and wholly insufficient to make any impression on his consciousness. If he had seen the conduits in time as alleged he could not judge of their proximity to the step for, as was said by Chief Justice Monroe in Hamilton vs. La. Ry. and Nav. Co., 147 La. 616 , 85 South. 611 : “It is well recognized in optics that the art of measuring distances by sight is largely an acquired one, and it is a matter Within the common experience that in many instances where the distances are *779 short and one has nothing by which to measure it is difficult, if not impossible, to determine the distance of an object within the range of one’s vision.” But he did not see them, at least had no consciousness of their existence, and the doctrine that one must be held to have seen what he could have seen has no application here.
The eye in its relation to human consciousness or understanding is analagous to the photographic lens and sensitized plate of the camera, but there is this difference: In the case of the camera, given light and proper exposure the lens faithfully and accurately reproduces upon the plate all objects within range. But the eye, and in a lesser degree the other senses, depend upon the exercise of the intellectual faculty of attention for proper functioning. We see objects and we read sentences, paragraphs and even pages with little or no consciousness of what we see, depending upon the degree of attention exercised. The first command given the soldier has no relation to the manual of arms, but the drill master shouts “attention” in recognition of the fact that attention is the beginning of consciousness. It is not sufficient that objects be within the scope of our senses. There must be conception, understanding, knowledge. The plaintiff in this case must have had knowledge of the danger before he can be said to be negligent in disregarding the precepts of ordinary care. In the words of -the famous German philosopher, “perceptions without conceptions are blind”. Sensory perceptions form “the warp of experience across which the shuttle of thought throws its woof and constructs its web of knowledge”.
When through constant repetition of sensory experience we learn to associate certain objects with certain surroundings and conditions the mind gradually accepts the relation as fixed and turns its attention to other considerations of greater novelty. Familiar situations are met' by subconscious action. When, therefore, the conduits appeared within the range of plaintiff’s vision there was no consciousness of their presence because he had a fixed impression of the neutral ground as free from obstruction and of the street railway as being safely and carefully operated. His attention was not arrested because the time during which the objects were within the range of his vision was not sufficient to overcome the mental inertia caused by previous mental experience constantly repeated. His action in stepping from the platform was therefore subconscious.