¶1(concurring)—I concur in tbe conclusion of tbe court to remand this case for a new trial, but I cannot agree that there is any room for tbe application of tbe doctrine of tbe last clear chance. It is because tbe court undertook to instruct upon that doctrine at all, and not because be instructed erroneously, that I vote as I do.
¶2Tbe plaintiff started across tbe street. When fairly on her way, she turned and retraced her steps, then suddenly turned and again started across tbe street. She bad become confused. As I view tbe record, tbe driver was not apprised of tbe danger of her situation in time to have stopped bis car or to have avoided tbe accident. If be appreciated tbe danger, be took tbe only chance left open to him and changed tbe course of bis car in an attempt to avoid her. When be did this, be did all tbe law required of him. He took tbe chance. WAen one takes tbe chance, and fails, we should not bold, as a matter of law, that it is for tbe jury to say either that be should have taken tbe chance or should have avoided tbe accident. Tbe law will not bold him to tbe doctrine when we can say, as a matter of law, that there was not a sufficient interval of time in which be might have avoided tbe accident. If plaintiff, being confused to the extent of making tbe situation, can *133maintain an action, defendant should not be held under the last clear chance doctrine when it is plain that plaintiff so confused the driver that the chance which he did take did not avoid the accident.
¶3In my judgment, the only issue in the case is one of proximate cause—whether defendants are to be held under the charge that the driver failed to sound his horn at the crossing, or that the driver was driving at an excessive rate of speed, or that defendant had entrusted the car to an inexperienced and incapable driver, or whether the proximate cause rests in the contributory negligence of the plaintiff.