(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.

Tbe 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.

In 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.

Appeal from a judgment in a personal injury case. The facts, so far as material to our inquiry, are these: Mrs. Underhill was crossing Pine street, Seattle, from north to south, intending to take the street car on the south side of the street. As she stepped from the north curb, she saw appellant’s automobile approaching from the east. She proceeded towards the street car track until nearly upon the track, *130under the impression that the automobile would pass between her and the north curb. Evidently, at this point, she became confused and stepped back to the curb. Before reaching it she again turned towards the center of the street, when she collided with the automobile. The driver of the automobile, in seeking to avoid a collision with Mrs. Underhill, turned his machine first to the curb and then to the center of the street. It was evident to the driver of the automobile that Mrs. Underhill was confused and for the time had lost the ability to protect herself from the approaching machine. With this fact apparent from the testimony, the lower court was of the opinion the doctrine of “last clear chance” was applicable, and submitted the case to the jury upon that theory.

Appellant’s first assignment of error is to the effect that in this the lower court was in error. The majority of the Department are inclined to the belief that the evidence brought the case within the doctrine of “last clear chance” as determined in Mosso v. Stanton Co., 75 Wash. 220, 134 Pac. 941, L. R. A. 1916A 943, and find no error in this assignment on the ground that, assuming some negligence on the part of the respondent in the devious course she pursued to avoid the automobile, the jury might, under proper instructions, have found that the proximate cause of the injury was the failure of appellant to embrace the last clear chance of avoiding injury by stopping the car, after observing respondent’s confusion and having opportunity to do so, or taking other precautions for respondent’s safety.

The second assignment of error is based upon the assumption that, if the rule of “last clear chance” does apply, the court committed error in defining appellant’s duty in the following instructions:

“While I say the driver of a machine is not required to stop his machine whenever he beholds a pedestrian *131in front of him attempting to cross the street, yet he must do so when it would seem to an ordinarily prudent driver that, unless he does stop his machine an accident will occur and danger will result, and notwithstanding a pedestrian may have been negligent in putting himself or herself in the place where the collision occurred, yet, if the driver of the machine in approaching the place where the collision occurred sees, notwithstanding the negligence of the pedestrian, that unless he stops his machine there will be a collision and an injury, it is his duty to stop the machine, notwithstanding the negligence of the pedestrian, to avoid the accident and the injury if he can do so, and if he fails to stop the machine when the danger of the pedestrian is imminent and manifest to the observation of an ordinarily prudent driver, when with the appliances at, his command he is able to stop the machine in season to avert the accident, then he would be negligent if he does not stop the machine and a collision and injury results on account of his failure to stop the machine.”

This instruction was error. While the doctrine of “last clear chance” as here applied charges appellant with the exercise of due care in the management of his machine after observing the dangerous plight of the respondent and her evident inability to care for herself, what is due care and whether or not it was exercised was a question for the jury to determine from the evidence, and not for the court to assume as a matter of law. The instruction should have been as in the Mosso case, that if, by the exercise of reasonable care and caution, the driver of the automobile saw, or could have seen, the perilous situation of the plaintiff in time to avoid the accident by stopping his car, changing its course, or taking such other precautions as a reasonably prudent driver would have taken under like circumstances, and failed to do so, such failure would be negligence, leaving for the jury to say what the ordinarily prudent driver would have done under the given circumstances, and not foreclosing that determination *132by establishing tbe act as a matter of law. Under tbe instruction as given, reiterating tbe duty of tbe driver to stop tbe car, tbe jury might well say, under tbe law, that appellant should have stopped bis car and did not do so; therefore be is guilty of negligence. Such is not tbe law. Tbe jury and not tbe law determines whether appellant exercised bis full duty.

Judgment reversed, and cause remauded to tbe lower court for a new trial.