dered in plaintiffs' favor for $10,000, and| from the judgment entered thereon and an order denying its motion for a new trial defendant has appealed.

It is earnestly contended that the evidence was insufficient to sustain the verdict. The claim in this regard is that, assuming that the defendant was negligent, still the evidence shows that the deceased was guilty of such contributory negligence as will preclude a recovery on the part of plaintiffs.

At the time of the accident there was an ordinance of the city of Los Angeles which prohibited any person from riding or propelling any bicycle within the corporate limits of the city at a rate of speed greater than 8 miles per hour. The deceased was violating this ordinance, and was consequently guilty of negligence, without which, undoubtedly, the accident would not have occurred. If there had been no ordinance regulating the speed of bicycles, it might well be contended that the evidence would have sustained a finding of the jury, that the deceased had not been guilty of contrib

the circumstances shown, the deceased was justified in assuming that the course between the railway tracks along San Pedro street would be kept sufficiently clear of obstructions to allow him to go at as high a rate of speed as he could; that he used all such precautions as a reasonable man under the same circumstances would use; that he discovered defendant's car as promptly as a reasonable man using such precautions would discover it; and that when he discov ered the car he used reasonable care in attempting to avoid a collision therewith. But he was guilty of negligence in his violation of the provisions of the ordinance, and if it had not been for this negligence on his part the accident would not have occurred.

The deceased was at the time of the accident, July 4, 1900, participating in a longdistance handicap bicycle race, from Los Angeles to San Pedro or Santa Monica, autory negligence,—a finding that, under all distance of about 20 miles. This race was described as "the usual Fourth of July race." The start was from the corner of Sixth and San Pedro streets, in the city of Los Angeles, and the course was southerly from Sixth strect along San Pedro street between the double tracks of defendant's street railway on said street as far as Washington street. On Ninth street, which intersects San Pedro street between Sixth and Washington streets, was a single-track railway of the defendant, crossing said double tracks on San Pedro street nearly at right angles. The participants in the race were numerous, probably more than 100, and they were started in groups, every fifteen seconds, or less in some cases, for about twelve minutes. Several groups of riders had preceded The complaint alleges that the defendant the group of which deceased was a member, did, by its motorman having charge of the and which consisted of nine men. While the operation of the car, "negligently, wantonly, last four of these riders were approaching and with wanton and reckless indifference to the Ninth street track, the other five having the safety of said Arthur E. Harrington, already crossed the same, one of defendant's drive and propel said car against him, Ninth street electric cars proceeding west- who was then and there in full sight and erly along said street crossed San Pedro view of said motorman," in consequence of street in front of them. The riders were go- all which said Harrington died. The claim ing at a high rate of speed, probably 20 of the plaintiffs in this connection is that, miles an hour, although some of the wit- notwithstanding the negligence of the denesses put it a little lower and some higher. ceased, the motorman was aware of the The car was proceeding 22 to 4 miles an perilous position in which the deceased had hour. The deceased, having discovered the ap- placed himself, and' could, by the exercise of proach of the car, left the group with which ordinary care, have avoided the accident, but he was riding and attempted either to pass in failed to exercise such care to do so, and front of the car on the westerly side of San recklessly drove his car forward in the path Pedro street, or to turn up Ninth street, and of the racers, and that this negligence on his in so doing collided with the right-hand part was the proximate cause of the death front corner of the car and was killed. The of the deceased. It will thus be seen that other three riders attempted to pass by the plaintiffs invoked the rule enunciated in sevrear of the car. One of them testified that eral opinions of this court to the effect that when about 15 or 20 feet from the car he he who last has a clear opportunity of avoidthrew himself sideways from his wheel to ing an accident by the exercise of proper avoid striking the car, which he would oth-care to avoid injuring others must do so. erwise have done, and, striking the ground, There was ample evidence to justify the rolled clear to the car, against its side, and the other two riders fell over him. The railway tracks on San Pedro street were lined with people witnessing the race, such lines extending across Ninth street and the railway tracks of defendant thereon.

jury in finding that defendant's motorman discovered the perilous position in which the deceased and his companions were placed at such a time and under such circumstances that he could, by the exercise of ordinary care, have avoided injuring them, and that

he did not exercise such care. It needs no to believe that they must cross the track argument to demonstrate that bicycle racers over which he was about to go. It is true traveling at the rate of 20 miles an hour or that the evidence is conflicting on some mamore along a narrow path, lined with spec-terial points, and that the motorman testitators on both sides, and only 85 feet away fied that he did not discover the approach (as the testimony of one disinterested wit- of the riders until it was too late to stop, ness indicated) from a place, on that path, and that he then used all reasonable care to towards which they were going, over which avoid injuring them. But the jury evidentan electric car was about to cross, were al- ly did not believe this evidence to be true, ready in a position of great peril, by reason and it was for them to determine the facts. of the approach of said car. Such circum- There was also ample evidence to justify the stances would naturally convey to the mind jury in finding that immediately upon disof any reasonable man, having knowledge covering his dangerous position the deceased thereof, the question as to whether the exercised reasonable care in endeavoring to riders, even though they immediately dis- avoid injury. One of his fellow riders tescovered the approach of the car, which was tified that the deceased exclaimed, "My God, doubtful, would be able to get out of the look at that car!" And immediately way, and whether they must not inevitably switched off, and tried, as he supposed, to cross the track along which the car was go around the front end of the car. The about to go, however much they might en-fatal result, and the escape from serious indeavor to avoid so doing, after discovering jury of the others, is in no way determinathe car, in order to escape collision. There is no parallel between a case presenting such circumstances and the ordinary case where a person is discovered walking or riding towards a railroad track. Ordinarily, the person operating the car has the right to assume that the one so approaching is able to and will care for himself, by taking all necessary precautions to observe the approach of the car, and that he will not place himself on the track at such a time as to be injured thereby. But no such assumption could be held to be justified under the peculiar circumstances already stated.

case

tive of the question as to whether he used such reasonable care, for, as has been well said, "it is always easy after an accident to see how it could have been avoided, but a man's duty before the calamity is not measured by such ex post facto information." Liverpool, L. & G. Ins. Co. v. Southern P. R. Co. 125 Cal. 434, 439, 58 Pac. 55, 57. It must be remembered that a person in great peril, where immediate action is necessary to avoid it, is not required to exercise all that presence of mind and carefulness which are justly required of a careful and prudent man under ordinary circumstances. The There was evidence warranting the jury reasonableness of his effort to escape injury, in finding that the motorman, who confessed- after discovery of the danger, was a quesly knew that the bicycle race was then in tion for the jury, to be determined by them progress on San Pedro street, was warned by in view of all the circumstances shown by We therefore have a some of the numerous bystanders before he the evidence. had reached the easterly line of San Pedro where the jury were warranted in finding street that the racers were coming, some the facts to be as follows, viz.: Deceased, calling upon him to stop the car, and others by reason of his own negligence, was placed exclaiming that the racers were coming; in a position of peril with relation to dethat some stood on the track in front of the fendant's car. The defendant knew that the car, endeavoring to stop the car by calling deceased was so placed, knew that it was at upon the motorman; he nevertheless pro- least doubtful whether the deceased could, by ceeded, traveling at from 22 to 4 miles per any act of his, remove himself from such hour, forcing the people in front to retire peril, and knew that it could by the exercise from the track; that he himself, after hear- of ordinary care, by simply stopping its car, ing the various warnings, saw the racers ap- absolutely remove the source of danger and proaching under the circumstances already avoid the injury. It failed to exercise such detailed, when he was still at least 20 or 25 care, and recklessly pushed its car forward feet east of the easterly line of the path along into the path over which the deceased was which they were proceeding; that after such approaching, its motorman preferring to discovery he could easily have stopped his take the chance of getting over before decar before it reached the path along which ceased arrived at the crossing. The dethe bicyclists were proceeding, and thus ceased, immediately upon discovering his have insured absolute safety to the riders, dangerous position, used all reasonable care but that, on the contrary, he pushed his car and made all practical effort to avoid the forward, in reckless disregard of the danger-accident.

ous position of deceased and his compan- Upon this state of facts, established as ions, knowing or having reasonable cause the facts of this case by the verdict of the

jury, the liability of the defendant follows | Angeles Consol. Electric R. Co. 115 Cal. 105, as a matter of law, and the verdict is fully sustained by the evidence.

106, 34 L. R. A. 350, 43 Pac. 207, 46 Pac. 889, distinguishing that case from those where the principle under discussion is applicable: "The case is not like one where the injured party is discovered in time lying or standing upon a railroad track under such circumstances as to make it doubtful whether he can or will get out of the way; or where one is even attempting, either on foot or otherwise, to make a crossing or passing along or on its track over a bridge or narrow causeway, or in a deep cut or tunnel, where to turn aside would be either dangerous or impossible. . . Persons cannot be recklessly or wantonly run down on a railroad track, however negligent themselves, where the circumstances are such as to convey to the mind of a reasonable man a question as to whether they will be able to get out of the way." See also Meeks v. Southern P. R. Co. 56 Cal. 513, 515, 38 Am. Rep. 67.

It cannot be held, in view of the evidence in the record and the finding of the jury, that the negligence of the deceased continued to the moment of the accident, and that both parties were contemporaneously and

It would be difficult to find a case more clearly justifying the application of the rule so often approved by this court, to the effect that one having knowledge of the dangerous situation of another, and having a clear opportunity by the exercise of proper care to avoid injuring him, must do so, notwithstanding the latter placed himself in such situation of danger by his own negligence. Lee v. Market Street R. Co. 135 Cal. 293, 67 Pac. 765; Fox v. Oakland Consol. Street R. Co. 118 Cal. 55, 62 Am. St. Rep. 216, 50 Pac. 25; Esrey v. Southern P. Co. 103 Cal. 541, 37 Pac. 500; Cunningham v. Los Angeles R. Co. 115 Cal. 561, 47 Pac. 452; Abrahams v. Los Angeles Traction Co. 124 Cal. 411, 57 Pac. 216; Crowley v. City R. Co. 60 Cal. 628; Meeks v. Southern P. R. Co. 56 Cal. 513, 38 Am. Rep. 67; Needham v. San Francisco & S. J. R. Co. 37 Cal. 409. It is immaterial whether the liability of the defendant in such a case be based upon the theory that the negligence of the defendant, being the later negligence, is the sole proximate cause of the injury, or upon the theory that defendant has been guilty of wil-actively in fault at the time thereof; and ful and wanton negligence. In either case, the liability would exist; for, where an act is done wilfully and wantonly, contributory negligence upon the part of the injured person is no bar to a recovery. Esrey v. Southern P. Co. 103 Cal. 541, 37 Pac. 500. As said by Mr. Beach in his work on Contributory Negligence: "When one, after discovering that I have carelessly exposed myself to an injury, neglects to use ordinary care to avoid hurting me, and inflicts the injury upon me as a result of his negligence, there is very little room for a claim that such conduct on his part is not wilful negligence." It is, of course, true, as urged by defendant, that it is essential to such liability that the defendant did actually know of the danger, and that there is no such liabuty where he does not know of the peril of the injured party, but would have discovered the same but for remissness on his part. Herbert v. Southern P. Co. 121 Cal. 227, 53 Pac. 651. This, however, does not mean, as seems to be contended, that defendant must know that injury is inevitable if he fails to exercise care, and the decisions indicate no such requirement. It is enough that the circumstances of which the defendant has knowledge are such as to convey to the mind of a reasonable man a question as to whether the other party will be able to escape the threatened injury. One in such a situation is in a dangerous position. It was said in the prevailing opinion in Everett v. Los

what is said in several cases as to the inability of the injured party to recover under such conditions (see Holmes v. South Pacific Coast R. Co. 97 Cal. 161, 31 Pac. 834; Sego v. Southern P. Co. 137 Cal. 405, 70 Pac. 279; Everett v. Los Angeles Consol. Electric R. Co. 115 Cal. 105, 34 L. R. A. 350, 43 Pac. 207, 46 Pac. 889) is inapplicable here. The deceased did unquestionably discover his dangerous situation before the accident, and the verdict is a finding that he used all reasonable care and made all practicable effort to avoid the accident.

Defendant contends that there may have been a moment after the motorman discov. ered the approach of the racers during which deceased had failed to discover the approach of the car, and that during this moment deceased continued to proceed until it was too late to escape injury, and that he was thereby guilty of negligence precluding a recovery. It may be freely admitted that the deceased did not discover the approach of the car as early as the motorman discovered the approach of the deceased, but we are unable to see anything to the advantage of defendant's cause in such a condition of affairs. If the motorman discovered the deceased in a dangerous situation, and the jury have found that he did, it was his duty to use ordinary care to avoid injuring him, regardless of whether or not the deceased was aware of his approach; and the jury have found that he did not use such care.

The motorman Myer, having been examined by defendant as to the circumstances of the accident, was asked: "Would you have moved that car in there if you had supposed thereby you were endangering the lives of those bicycle riders?" Plaintiffs' objection thereto was sustained. The witness then testified as follows: "I thought that it was best to move on at that juncture, because I thought I had plenty of time, and also that it was dangerous for me to stop the car at that time." It is unnecessary to discuss the question as to whether or not error was committed in sustaining the objection, for the subsequent testimony of the witness was a complete statement as to his reason for moving the car forward. He said that he thought he had plenty of time to cross, and that it would be dangerous to stop. This excludes any supposition that he was endangering the lives of the riders by moving on. What he would have done as to moving on, if he supposed otherwise than he did, is entirely immaterial.

That the evidence was sufficient to justify | party's own negligence brings him into dana conclusion that the motorman had the ger, and defendant discovers the danger in last clear opportunity to avoid the accident time to avoid ensuing injury by the exercise seems very clear. We shall have occasion to of ordinary care, and fails to excrcise such consider this contention of defendant again care, the defendant is liable notwithstanding in discussing the instructions to the jury. such negligence of the injured party, if he, the injured party, after discovering his own danger, exercises ordinary care to escape the injury. This, it is urged, relieved the injured party entirely from the consequences of his negligent failure to discover his own danger resulting from his own negligence. We see no force in the contention that the theory upon which it is said these instructions were predicated is erroneous. Such an instruction is applicable by its terms, only in the event that the defendant discovers the negligent injured party already in a dangerous position.-discovers him under such circumstances as preclude him from indulging in any assumption that he, the injured party, can or will get out of the way. It is only because of such discovery that he is called upon to exercise ordinary care to avoid injuring him. Upon such discovery, it is his plain duty to use ordinary care to avoid injuring the negligent party, and if he has a clear opportunity to avoid such injury, i. e., "such an opportunity as would necessarily be clear and plain to a man of ordinary intelligence and prudence in a given emergency," and fails to take advantage thereof, he is liable for the injury provided the other is not negligent after he discovers the danger. In such a case, he who knows of the danger, and recklessly proceeds regardless thereof, can find no refuge in the fact that the injured party who does not know of it would have known if he had used reasonable care to ascertain it. In such a case, he who knows of the danger and can avoid it, as against one who does not in fact know thereof, has the last clear opportunity to avoid the accident. If a motorman should discover a man asleep on the track in front, and, knowing him to be asleep, should proceed regardless of his position and condition, and run over him with his car while still asleep, there would be very little question that the motorman had the last clear opportunity, and that his negligence was the proximate cause of the injury.

Complaint is made as to various instructions given at the request of the plaintiffs. It is urged that the jury may have concluded from plaintiffs' fourth instruction that they were authorized in finding a verdict against the defendant, although they may have believed that the motorman neither expressly nor impliedly intended to injure deceased or anyone else. No purpose or design on the part of the motorman to injure was essential to defendant's liability, and the plain object of the instruction was to so inform the jury. By it the jury were substantially told that, although one might not have the actual intent to injure, still if there is on his part a reckless indifference or disregard of the natural or probable consequences of doing or omitting to do an act, and he does or fails to do the act, conscious, from his knowledge of existing circumstances and conditions, that his conduct will likely or probably result in injury, he is guilty of wanton negligence. We see no prejudicial error in this statement. Esrey v. Southern P. Co. 103 Cal. 541, 37 Pac. 500; Everett v. Los Angeles Consol. Electric R. Co. 115 Cal. 127, 34 L. R. A. 350, 43 Pac. 207, 46 Pac. 889; Beach, Contrib. Neg. §§ 55,

As said before, such a case has no feature in common with one where ne circumstances are such that the defendant has the right to assume that the other party can and will protect himself, and consequently that he is not in a dangerous situation. There was no prejudicial error in the modification Defendant's objection to plaintiffs' in- by the court of defendant's requested instructions 5, 6, 7, and 9 is that they are struction 4. It was sought by this requested predicated upon an alleged erroneous theory instruction to have the jury instructed that, of the law, viz.: That where the injured if the deceased was at the time of the race

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propelling his bicycle at a rate of speed in | distinction between the terms as used in excess of 8 miles per hour, and did not look these instructions. for an approaching car until it was too late to bring his bicycle to a standstill so as to avoid a collision, and did not at any time attempt to reduce the speed of said bicycle before said collision occurred, he was guilty of "gross" negligence. The court modified this by adding, "or did not attempt to turn it out of the way of said car before said collision occurred," as one of the prerequisites of gross negligence on the part of the deceased.