Me. Justice Buenett
delivered the opinion of the court.
Me. Justice Bean dissenting.
1. It is contended by the defendant that the court ought to have dismissed the action because it appeared in testimony that the decedent had been for a long time prior to his death, and then was, a resident and inhabitant of Marion County, Oregon, and hence that the county court of Multnomah County had no jurisdiction to appoint the plaintiff administratrix of his estate. This question was raised by a motion for nonsuit at the close of the plaintiff’s case, by an application to the court for leave to file an amended answer, in which there was added to the allegations and denials of the answer already quoted the averment that the decedent was, at the time of his death, a resident of Marion County, Oregon, which application to file a second amended answer was denied by the court. Under the authority of Slate’s Estate, 40 Or. 351 (68 Pac. 399), this question might have been made available in behalf of the defendant if it had been urged by a proper plea in abatement. It is provided by Section 68, L. O. L., that the defendant may demur to the complaint within the time required by law to appear and answer when it appears upon the face thereof, among other things, that the plaintiff has not legal capacity to sue. Section 71, L. O. L., says that—
“When any of the matters enumerated in Section 68 do not appear upon the face of the complaint, the objection may be taken by answer.”
The rule is laid down in Section 72, L. O. L., that—
“If no objection be taken either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the court and the objection that the complaint does not state facts sufficient to constitute a cause of action.”
2. If^ in truth, on account of the wrongful act or omission of the defendant, the death of the decedent was caused, some administrator of the latter’s estate could [317]*317maintain an action at law therefor against the defendant, if the deceased himself might have maintained the action had he lived. Section 380, L. O. L. Even if the amended answer tendered had been received and filed, it was defective in this respect because it joins the matter in abatement to the plea in bar. The plea in abatement is tantamount to the defendant’s saying to the plaintiff:
“Admitting that your decedent met his death as you state, you have no capacity to bring this suit on account of his residence being in Marion County, whereas your letters of administration were issued by the county court of Multnomah County.”
This was joined to the plea in bar, which utterly denies all the statements of the complaint except as noted, as well as alleging new matter in justification. The rule is well established in this State that a plea in abatement is waived by joining it with a plea in bar. Hopwood v. Patterson, 2 Or. 49; Fiore v. Ladd, 29 Or. 528 (46 Pac. 144) ; Morgan’s Estate, 46 Or. 233 (77 Pac. 608: 78 Pac. 1029) ; Rafferty v. Davis, 54 Or. 77 (102 Pac. 305) ; Wilson v. Wilson, 26 Or. 251 (38 Pac. 185) ; Owings v. Turner, 48 Or. 462 (87 Pac. 160). Under this state of the pleading, the attack upon the plaintiff’s representative character can avail the defendant nothing here.
3. The principal testimony on the part of the plaintiff was given by a young lady who was a guest at the hotel at the time of the wrongs complained of. She testified, in substance, that about half-past two o’clock in the morning of August 24th she was awakened by someone calling for help. After listening awhile, she took her lamp and went to the room of the defendant and told him that there was something the matter. He arose and went with her to the rear of the hotel on a porch where they saw some object lying in a roadway below. The defendant inquired, “What is the matter down there?” [318]*318and the answer came back from the decedent, who was lying there, “Well, there is a wire on my leg cutting me to the flesh, come down and take it off.” The defendant took the lamp and went down where the decedent, as the object proved to be, was lying on the ground and told him to get up and go away. The decedent said, “All right, if I can get away on one. leg I will go.” The decedent then attempted to rise and go away, but fell down again, whereupon the defendant looked more closely at him and told him again, “You get away from here or I’ll get someone to take you away.” The defendant, without touching the decedent or in any way doing anything for him, left him there and returned to the hotel. The young lady also testified that the decedent had on a dark suit of clothes, trousers and coat at least, and that one of his feet was bare. She is somewhat confused in her statements about the railing around the porch, varying all the way from an absolute statement that there was no railing to the other that she does not recollect whether there was any or not. The decedent was discovered next morning lying near a power house, which generates electricity for the hotel, and his leg was then found to be broken below the knee. He was suffering from cold and was delirious. An employee of .the defendant procured a stretcher and some blankets, and together with some of the other guests of the hotel carried the decedent into the power house and afterwards took h'im to the boat landing for the purpose of sending him to Portland for treatment, where he died the next day. Other testimony for the plaintiff tends to show that, when the defendant was notified the following morning that the decedent’s leg was broken, he telephoned to different points for a physician, but without success, and afterwards directed that he be taken to the boat and sent to Portland as above stated. On behalf of defendant there was testimony tending to show that plaintiff’s intestate was more or [319]*319less intoxicated the night of the accident; that his room was found all disarranged, the furniture twisted around, the sheets taken off the bed and stuffed into the water pitcher; that there were three empty whisky bottles found there immediately after the accident; that all of the porches, as well as the stairways, had railings; and that the halls and corridors of the hotel were all lighted with kerosene lamps as soon as the electricity was turned off each night.
The defendant himself testified, in substance, that, on being called by the- young lady, he went out and found the plaintiff’s intestate lying in the roadway and, inquiring what was the matter, he was told that there was a wire on his leg; that he told him that there was no wire on his leg but to get up and get out of there and not to annoy the people who were asleep at the hotel; that he appeared to have all his clothing on; did not say his leg was broken, and there was nothing about him to indicate to the defendant that he was injured at all, but that he acted like he was drunk; that, after the young lady had retired to her room, the defendant went down to the main floor and watched the man, who got up from the place where he first saw him in the road and went to the power house about 103 feet distant where he sat down on a box and appeared to go to sleep, and, after watching him until about 5 o’clock, he himself retired, and later in the forenoon, when informed by another guest that decedent’s leg was broken, he did everything he could for him, telephoning for a physician, and afterwards providing for his transportation to Portland as before stated.
4. Among others, the court gave the following instructions to the jury, to which the defendant excepted:
“If you should find that there was no railing around the porch and that it was not lighted, then you must ask yourselves whether or not a reasonably prudent man, conducting a hotel of like character at that point, would [320]*320not have had those preventatives there, and if you find that he would have had them there, and that the defendant did not have them there, there has been a negligent act committed on the part of the defendant.”
In this connection it will be remembered that after charging that there was no railing around the porches, and there were no lights to warn the decedent that the porch was dangerous on account of its height from the ground, the complaint charges—
“That, on account of the lack of said railing and the lack of lights upon and around said porch, the said Charles Scholl fell therefrom and was injured and crippled as aforesaid, and if the said porch had been supplied with any railing, or had any lights thereon, the said Charles Scholl would not have fallen therefrom and would not have been crippled, injured, and bruised as aforesaid.”
It is not stated that the decedent fell from the porch from a point where he had a right to or was invited to be, or in what manner the absence of railing contributed to the accident. It would have been better if the complaint had stated the facts showing how the absence of the railing produced the injury complained of. The court might have then drawn the conclusion the pleader had urged, to wit, “that the accident happened on account of the absence of the railing.” The pleading is open to the criticism made by the case of Smith v. Buttner, 90 Cal. 95 (27 Pac. 29). In that case the plaintiif was a tenant of the defendant who, while she was residing in the house, caused it to be raised a few feet higher than it was before. The complaint charged that after elevating the house, and while the plaintiff was living in it, the defendant had failed and neglected to provide any safe and proper means of entrance to, or egress from, the house, and by reason of the negligence of the defendant in that respect the plaintiff, in endeavoring to descend from the house to the ground for a proper and lawful [321]*321purpose, while in the exercise of due care and diligence, and without any fault or negligence on her part, fell to the ground and dislocated her left wrist and- suffered other injuries. The court says: “The negligence consisted simply in failing to provide safe, proper, and suitable means of entrance to or egress from a house, and it is alleged that this negligence caused the plaintiff to fall, but no other fact is averred that shows that such negligence had anything to do with the accident. How did it. cause her to fall ? * * It it well settled that negligence may be charged in general terms — that is, what was done being stated it is sufficient to say that it was negligently done without stating the particular omission which rendered the act negligent — but it must appear from the facts averred that the negligence caused or contributed to the injury. * * We are not at liberty to suppose that anything gave way through the latent insecurity of the structure, for it is not so alleged. The presumption is therefore that the accident arose from a patent defect, and that the pleader has failed to make a more specific statement, because such a statement would have weakened his case.”
Aside from the question of whether or not the pleading is sufficient in respect to the allegation about the absence of railing, the instruction is faulty in that it does not include the condition that the absence of railing is the proximate cause of the injury to the decedent. At best this was an issuable fact both as a question of pleading and of testimony, and the additional element that it must be shown by the testimony that this absence of railing, if it was a fact, contributed proximately to the injury of the decedent should have appeared in this instruction. On the question of pleading on this feature of the case, the following cases are applicable: Ten Broeck v. Wells (C. C.), 47 Fed. 690; Sneed v. Moorehead, 70 Miss. 690 (13 South. 235). On the question of [322]*322the instruction and the necessity of showing that the negligence complained of was the proximate cause of the injury, the following cases are instructive: Acton v. Reecl, 104 App. Div. 507 (93 N. Y. Supp. 911) ; Radley v. Knepfly (Tex.), 135 S. W. 111; Weeks v. McNulty, 101 Tenn. 495 (48 S. W. 809: 43 L. R. A. 185: 70 Am. St. Rep. 693).
5. The circuit court refused to give the jury this instruction requested by the defendant:
“If the accident charged in the complaint happened because of acts over which the defendant had no control, or of which the defendant did not know, then you must find a verdict in favor of the defendant.”
6. On the contrary, over the defendant’s objection, the jury was instructed as follows:
“Now if you should find in this case that Mr. Scholl, the deceased, was guilty of contributory negligence which brought about his injuries, but if you find that the result of this contributory negligence on his part could have been prevented by the defendant taking him in and administering unto him, and he failed to do that, notwithstanding the fact of contributory negligence on the part of the deceased, Charles Scholl, then and in that case the defendant would be liable because the contributory negligence of the deceased would not be the proximate cause of the injury which happened to him. In other words, though one may be guilty of contributory negligence, if the defendant has it within his power to minimize or stop the effect of such contributory negligence, and he failed to do that, why then his failure so to do becomes the proximate cause, notwithstanding the contributory negligence of the plaintiff.”
Under the pleadings and testimony it was at least debatable whether or not decedent was really hurt when defendant found him, or whether he was merely drunk, or, even if he then had a broken leg, that the appellant might not have honestly mistaken his condition for one of intoxication and his talk for the maudlin mutterings of a drunkard.
[323]*3237. It is of course the duty of an innkeeper to take ordinary care to keep his buildings and premises reasonably safe for the use of his guests. These he is bound to furnish, but he cannot compel his guests to avail themselves of the accommodations he has provided. He has no custody or control of his patrons as of a patient or a prisoner. It is not pretended in. this case that the defendant was conducting a refuge home for inebriates. There was testimony before the jury, as reported in the records, tending to show that all the porches and steps of the hotel were equipped with substantial railings; that the decedent was hurt as the result of his own negligent conduct; and that his injury was unknown to the innkeeper. The defendant had a right to have this theory presented to the jury by the court in its instructions. Granting, then, that the deceased came into a dangerous predicament as the result of his own fault, whatever duty of the defendant then arose must depend upon his knowledge of the situation, either actual or imputed.
8. It is axiomatic in the law that, although one’s own negligence has brought him into danger, he cannot be willfully or wantonly hurt by another with impunity. On the other hand, many authorities have laid down the rule that, in order to- charge the defendant in such a case, he must have had actual knowledge of the hazardous situation of the person alleged to have been injured by the defendant’s fault. In Smith v. Southern Pac. Co., 58 Or. 22, 36 (113 Pac. 41, 46), Mr. Justice Bean states the rule thus: “Where plaintiff negligently assumed the position of danger in such a degree and so contributed to his hurt as to leave him without right of recovery for any primary negligence of the other party, he may nevertheless recover if the person he charges with the wrong or injury became aware of his peril in time to avoid, by the proper use of all the means at his command, injuring [324]*324him and listlessly and inadvertently or negligently failed to resort to such means, provided he is himself free from negligence after he became conscious of his danger.” Again in Stewart v. Portland R. L. & P. Co., 58 Or. 877, 381 (114 Pac. 936, 938), Mr. Justice McBride used this language: “In order to invoke the ‘last clear chance doctrine’ plaintiff must plead and prove that defendant, after perceiving the danger and in time to avoid it, negligently refused to do so.” “The doctrine which makes a personal injury the fault of him who has the last clear opportunity to prevent it has coupled with it, and in it, the element of notice.” Rowe v. So. Cal. Ry., 4 Cal. App. 1 (87 Pac. 220). “Doubtless, notwithstanding the negligence of the plaintiff has put him in peril, yet if it can be perceived in time by the defendant so that, by the exercise of ordinary diligence on his part, injury can be avoided, the defendant will be held for the injury. That is based upon the fact that the defendant did really know of the danger, not upon the proposition that he would have discovered the peril of the plaintiff, but for remissness on his part. Under this rule a defendant is not liable because he ought to have known.” Herbert v. S. P. Co., 121 Cal. 227 (53 Pac. 651). The rule is also approved in Harrington v. Los Angeles Ry. Co., 140 Cal. 514 (74 Pac. 15: 63 L. R. A. 238: 98 Am. St. Rep. 85) ; Sauer v. Eagle Breiuing Co., 3 Cal. App. 127 (84 Pac. 425) ; Green v. Los Angeles Terminal Ry. Co., 143 Cal. 31 (76 Pac. 719: 101 Am. St. Rep. 69) ; Black v. N. Y. Ry. Co., 193 Mass. 448 (79 N. E. 797: 7 L. R. A. [N. S.] 148: 9 Ann. Cas. 485). Other authorities hold that the defendant in such cases is bound not only by what he actually knew of the situation of the plaintiff, but also by what he might have discovered by the exercise of ordinary care in time to avoid injuring the plaintiff. Bourett v. Chicago & N. W. Ry. Co. (Iowa), 121 N. W. 380; Roanoke Ry. v. Carroll, 112 Va. 598 (72 S. E. 125) ; [325]*325Ind. Ter. & Tract. Co. v. Croly (Ind. App.), 96 N. E. 973. None of the precedents, however, go - further than to judge the defendant by what he ought to have known if he had been ordinarily observant.
It is not necessary to decide here whether a defendant in such cases is to be judged by what he ought- to have known or only by his actual knowledge, nor is it intended to distinguish or modify the utterances of this court on. that subject already quoted. On the record made in this case it matters not which standard should be adopted, for the instruction given by the court on that feature and last above quoted omits entirely the element of defendant’s knowledge, either actual or imputed, of the decedent’s condition of danger. On account of this omission, the rules, as stated by the court, would make the defendant virtually an insurer of the injured person as to the consequences of his own imprudent conduct. As against any control of the defendant, barring disturbance of the other guests, the plaintiff’s intestate had a right to wander about the premises in the dark or lie outdoors upon the ground at 2 o’clock in the morning either drunk or sober. Under such circumstances, it is not apparent that the defendant owed him any duty or had any authority to prevent him from doing so. At least the duty would be far different from what would be due to one suffering from a broken leg. It is clear that the court should have, in any event, submitted to the jury the question of whether the defendant knew, or by the exercise of reasonable diligence ought to have known, of the decedent’s broken leg and consequently helpless condition. It is easy now to look back and say that some time during the night, between bedtime and the next morning, when the fracture of the decedent’s leg was actually discovered, he had suffered that disabling injury. On the other hand, there was a fair question in the testimony as to whether, during the time [326]*326Scholl came under the observation of the defendant., the former was not injured, but merely in a state of voluntary intoxication, over which the defendant had no control. The degree of actual care incumbent on the defendant is in good reason- different in each of the two conditions named, and he was entitled in any view of the case to have submitted to the jury the question of his knowledge, whether we should hold it to be actual or constructive, to be binding on him.
9. The circuit court also refused, over the exception of the defendant, to give the following instruction:
“If drunkenness was the proximate cause of the death of the deceased, if he got drunk under such circumstances as any reasonable and prudent man could foresee that he was putting himself in such a condition that this result might probably happen, then the plaintiff cannot recover.”
This instruction should have been given in connection with the defense of contributory negligence urged by the defendant in his answer. In no part of the charge given to the jury was there any attempt to define what effect voluntary drunkenness of the decedent as an element of contributory negligence would have upon the liability of the defendant. In Smith v. Norfolk & So. Ry. Co., 114 N. C. 728 (19 S. E. 863, 923: 25 L. R. A. 287), the following language occurs: “We are also of the opinion that there was an error in ignoring that universally established principle of the law of contributory negligence which imposes upon one, who has voluntarily disabled himself by reason of intoxication, the same degree of care and prudence which is required of a sober person. * * It would be a strange rule of law that regarded a certain course of conduct negligent and blameworthy upon the part of a sober man, but that held the same conduct on the part of the same man when intoxicated excusable. Drunkenness will never excuse one for failure to exercise the measure of care and prudence which is due from a sober man under the same circumstances. [327]*327Men must be content to enjoy the pleasures of intoxication with its perils. When they make themselves drunk, and in that helpless condition wander upon the premises of sober men and sustain an injury, they will not be heard tb plead their intoxication as an answer to the charge on negligence. * * ” Said Mr. Justice Collins in Bageard v. Con. Tract. Co., 64 N. J. Law, 316, 322 (45 Atl. 620, 622: 49 L. R. A. 424, 427 (81 Am. St. Rep. 498) : “The true rule is that voluntary drunkenness does not relieve the drunken man from the degree of care required of a sober man in the same circumstances, and, if his drunkenness renders him incapable of exercising such care, then it contributes to any injury thereby sustained and bars recovery for another’s negligence.” To the same effect are the following cases: Fisher v. W. Va. Ry. Co., 39 W. Va. 366 (19 S. E. 578: 23 L. R. A. 758) ; Welty v. Ind. Ry. Co., 105 Ind. 55 (4 N. E. 410) ; Rollestone v. Cassirer, 3 Ga. App. 161 (59 S. E. 442) ; Keeshan v. Elgin Tract. Co., 229 Ill. 533 (82 N. E. 360).
It is substantially charged, as a ground of contributory negligence, that at an unreasonable hour of the night, after all others on the premises had retired, the decedent went outside of the hotel without the knowledge or notice of the defendant and, while so intoxicated at that time, received the injury of the broken leg, but after the accident the decedent did not notify or warn the defendant that, he had sustained the injury. That this would be contributory negligence is sustained by the following authorities: Dailey v. Distler, 115 App. Div. 102 (100 N. Y. Supp. 679) ; Cook v. McGillicuddy, 106 Me. 119 (75 Atl. 378) ; Gaffney v. Brown, 150 Mass. 479 (23 N. E. 233) ; Walker v. Midland Ry. Co., 55 L. T. R. (N. S.) 489. The same effect was given to like conduct of sober persons in the cases of Watson v. Manitou Ry. Co., 41 Colo. 138 (92 Pac. 17: 17 L. R. A. [N. S.] 916), and Reed v. Axtell, 84 Va. 231 (4 S. E. 587). In the first of [328]*328these cases the plaintiff was staying for the night at a hotel on Pike’s Peak. He got out of bed during the. night and, after sitting by the fire awhile, desired to urinate, and was told that he would have to go outside as there was no suitable place in the building. A light in the hotel shone outside for a considerable distance, but he went diagonally away from it about 35 feet, where' he fell over a retaining wall built along the track of the defendant company, the proprietor and lessor of the hotel.' The plaintiff’s own conduct was held to be contributory negli-' gence defeating his recovery. In Reed v. Axtell the plaintiff by her own choice was spending the night in the waiting room of a' railway of which the defendants were receivers. Finding there was no ladies’ toilet in the depot, she walked out in the darkness without inquiring the way and fell from the platform, whereby she was injured. The Supreme Court of Virginia denied her right to recover, holding that she was guilty of contributory negligence. In brief, the rule laid down by the authorities quoted is that a man in a state of voluntary intoxication is held to the same degree of care expected of a sober man under like circumstances. Although, as stated, some authorities hold that a defendant is liable under the doctrine of “the last clear chance” if by reasonable care he could have discovered the- position of peril in which the decedent was at the time, yet none of them make this an exception to the old-established rule that, if the negligence of the plaintiff in any way contributed proximately to his own injury, he cannot recover or hold the defendant liable although the latter may have been negligent.
10,11. The principle upon which a defendant is held liable under the doctrine of “the last clear chance” is that, although the plaintiff has been negligent in placing himself in a position of danger, yet, if his negligence has spent its force and culminated, it has ceased to be a [329]*329proximate cause, and the negligence of the defendant is a succeeding active cause in producing the injury. The principle does not apply in cases where the negligence of the plaintiff continues up to the time of the infliction of the injury. So in this case, if the drunkenness of the decedent was voluntary and continued to affect the case up to the time he received the injuries complained of, he would be held responsible for his own negligence and could not recover from the defendant. In other words, if the plaintiff’s intestate, while voluntarily intoxicated, received the injuries in question, he must be judged by the same standard of conduct applied to a sober man in a like situation, so that, if he came to his hurt and its consequences by his own negligence contributing to that result, whether drunk or sober, that negligence must have culminated and spent its force and so ceased to affect the case before any mere nonfeasant neglect on the part of the defendant would render him liable.
It may be true that the decedent was sick from causes independent of what he had drunk, and that he was injured without any negligence on his part, and it may also be that his negligence, if any, had culminated, and that the defendant was subsequently negligent in a way to produce the injury complained of, but with this question of fact we have nothing to do for the present purposes. There was also testimony on which the defendant was entitled to rely, as supporting his theory of the case, that the decedent was negligent in a way contributing to his own harm in that he became voluntarily intoxicated and on account of that experienced the injuries of which complaint is made, and the defendant was entitled to have this theory of the case presented to the jury with proper instructions. Most of the cases relied upon by the plaintiff are those in which the defendant had control of or was actively operating some agency, like a locomotive or street car, by the positive use of which [330]*330the injury was inflicted. In substantially all of them the defendant did some affirmative act succeeding and not synchronous with the plaintiff’s negligence, but which produced the harm of which the complaint was made. One of such cases was Northern Central Ry. Co. v. State, 29 Md. 420 (96 Am. Dec. 545), in which the company’s train collided with the intestate and apparently killed him outright, thus far without liability for all that was disclosed. After the train was stopped, the injured man was found on the pilot of the locomotive helpless and seemingly dead. He was removed from that place by the employees of the company and, at the instance of the local agent, who was unwilling to have the body in the station, was locked up alone in a warehouse for the night, where he was laid upon a board resting upon some barrels. Next morning it was discovered that he had revived during the night and had moved about in the room where he was confined, and had died of hemorrhage from an artery severed by colliding with the train. The court held substantially that, in affirmatively assuming to care for the injured person, and then acting as it did through its employees, with at least imputed knowledge of the situation on their part, the company was guilty of an independent negligence operating after any neglect on the part of the decedent had culminated and spent its force, and that the case was properly submitted to the jury on that theory. Another case was Depue v. Flatau, 100 Minn. 299 (111 N. W. 1: 8 L. R. A. [N. S.] 485). There the plaintiff during a cold winter day had gone in a sleigh to the defendants’ home to purchase some cattle. While there he was taken sick, as he said, or drunk, as the defendants contended, but at any rate became helpless. In this condition the defendants refused to allow him to stay at their house, and one of them took him out, placed him in his cutter, and, as he was unable to hold the reins, put them around his shoulders and [331]*331started the team along the road towards where the plaintiff lived. The team left the highway, and the complainant was badly frozen. Some of his fingers were necessarily amputated as a result. Here, as in the other case, the defendants had undertaken affirmative action, knowing the helpless condition of the plaintiff, and had acted with negligence, operating subsequently to any fault of the plaintiff. Other precedents of like nature might be reviewed, but these suffice for illustration. These features plainly distinguish those cases from the one at bar in which the only delinquency attributed to the defendant is that of nonfeasance instead of malfeasance.
It was error not to submit to the jury the question of defendant’s knowledge, either actual or imputed, of Scholl’s true physical condition as a measure of the former’s duty to the latter. It was also error not to submit the question of decedent’s alleged voluntary intoxication in connection with the defense of contributory negli-. gence, so that the jury could determine whether plaintiff’s intestate was himself guilty of negligence, as charged, which operated with defendant’s fault, if any, and continued until, and contributed to, the injury complained of, in which case, under all the authorities, the recovery of damages would be defeated.
The conclusion is that the decision of the court below is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
Reversed.