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District Court of Appeal, Fourth District, California.

RODABAUGH et al. v. TEKUS et al.

Civ. 4401.

Decided: December 06, 1951

Elmer R. Guy, Fullerton, Hirson & Horn, Los Angeles, Theodore A. Horn, Los Angeles, of counsel, for appellants. Robert A. Cushman, Los Angeles, for respondent Paul Tekus.

Plaintiffs, the widow and adult sons of Andrew C. Rodabaugh, deceased, brought this action for damages for his wrongful death occurring in an automobile collision. After the denial of defendant's motion for a directed verdict, a jury returned a verdict in favor of plaintiffs for the sum of $2,500. Defendant then moved for a judgment in his favor notwithstanding the verdict. This motion was granted and plaintiffs appeal from the order granting the motion and from the judgment thereupon entered. The principal question involved is whether the last clear chance doctrine is applicable to the instant case.

The accident happened about 7:20 A.M. on August 24, 1948, in Orange county in the intersection of Bolsa Street, an east and west state highway, and Golden West Avenue, a county road running north and south. Both roadways are approximately 20 feet wide and are paved. The view of the intersection is unobstructed from all sides and at the time of the accident, visibility was about 500 feet. Bolsa Street is a through highway and at the north and south approaches to it from Golden West Avenue are regulation stop signs. The word ‘stop’ and a white stop line are painted on the pavement of Golden West Avenue a few feet south of Bolsa Street. There is a wavering white line crossing and recrossing the white center line of Golden West Avenue for approximately 300 feet south of the intersection. Decedent was driving north on Golden West Avenue in a Buick sedan at 35 to 40 miles per hour and when defendant first observed him, he was approximately 500 feet south of the intersection. Decedent failed to observe the stop signs and continued north at the same rate of speed until the accident occurred. Defendant Tekus was traveling west on Bolsa Street in a Nash automobile at a speed of approximately 40 miles per hour and when he was approximately 500 feet east of the intersection, first observed the decedent traveling north and about 500 feet south of Bolsa Street. Defendant continued to watch the decedent's car and ‘kept his eye on it all the time.’ When he saw that decedent's car did not slow down, defendant started to put his brakes on at a point approximately 75 to 100 feet from the intersection. He testified that he put them on gently at first, thinking that the decedent would probably stop ‘but he didn't stop so I slammed them on;’ that ‘about 75 feet was when I started to apply them a little more strongly and the last about 35 feet, that is where the skid marks show where I applied the brakes hard.’ He further testified that when he started to put on the brakes, he could have stopped his car in approximately 60 feet; that as decedent approached, he appeared to be looking straight ahead and did not slacken his speed at any time before the impact occurred. Defendant did not turn to the right or left before the impact and his car struck the Buick on its right side at the rear door and wheel. The collision occurred in the northeast quadrant of the intersection and when the vehicles came to rest, the Buick was in a ditch near the northwest corner of the intersection, approximately 90 feet from the point of impact. The Nash was approximately 25 feet west of this point, facing east. Decedent was found dead in the ditch near his automobile.

An automobile mechanic riding with the defendant testified that when he first saw the decedent's car it was about 150 feet south of the intersection and the defendant's car was about 200 feet east of it; that decedent's car was traveling at about 30 miles per hour; that he did not notice any change of speed in it before the impact; and that he did not know whether defendant applied his brakes before the accident.

As noted, the controversy herein is as to the applicability of the last clear chance doctrine. The necessary elements of this doctrine are correctly stated in the following instruction, Root v. Pacific Greyhound Lines, 84 Cal.App.2d 135, 137, 190 P.2d 48, 50:

“The doctrine of last clear chance may be invoked if, and only if, you find from the evidence that these six facts existed:

“First: That plaintiff, by his own negligence, got himself into a position of danger.

“Second: That thereupon, either it was physically impossible for him through the exercise of ordinary care to escape from the danger, or he was totally unaware of impending danger in his position.

“Third: That the defendant had actual knowledge of plaintiff's perilous situation.

“Fourth: That it appeared to the defendant, or would have appeared to him in the exercise of ordinary care, that plaintiff either was unaware of the danger impending in the situation or was unable to escape therefrom through the exercise of ordinary care.

“Fifth: That after the defendant acquired actual knowledge of plaintiff's perilous situation, he had a clear opportunity to avoid the accident and could have done so by exercising ordinary care.

“Sixth: That the defendant did not avail himself of that opportunity, but by negligent conduct proximately caused the accident.

“If all the conditions just mentioned are found by you to have existed with respect to the accident in question, then you must find against the defense of contributory negligence, because under such conditions the law holds the defendant liable for any injury suffered by the plaintiff and proximately resulting from the accident, despite the negligence of the plaintiff.”

In the instant case the jury was instructed as to the elements of the doctrine substantially in the above quoted language. After the case was submitted to the jury, it returned into court and this instruction was again read at the request of the foreman.

It is the contention of the defendant that there is no evidence to establish the existence of elements five and six in the above quoted instruction and hence, that the doctrine of the last clear chance is inapplicable. This contention must be considered in the light of the rules governing an appellate court in reviewing the correctness of an order directing judgment notwithstanding a jury verdict. We must analyze the proof to determine whether it contains evidence of sufficient substantiality to support the verdict for plaintiffs, resolving all conflicts in the evidence in favor of plaintiffs and give them the benefit of every fact pertinent to the issues involved which can reasonably be deduced from the evidence. Champion v. Bennetts, 37 Cal.2d 815, 236 P.2d 155; Shannon v. Thomas, 57 Cal.App.2d 187, 192–193, 134 P.2d 522. As was said in Estate of Flood, 217 Cal. 763, 768, 21 P.2d 579, 580: “It has become the established law of this state that the power of the court to direct a verdict is absolutely the same as the power of the court to grant a nonsuit. A nonsuit or a directed verdict may be granted ‘only when, disregarding conflicting evidence and giving to plaintiff's evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of plaintiff if such a verdict were given.’ (Citing cases.) Unless it can be said as a matter of law that, when so considered, no other reasonable conclusion is legally deducible from the evidence, and that any other holding would be so lacking in evidentiary support that a reviewing court would be impelled to reverse it upon appeal, or the trial court to set it aside as a matter of law, the trial court is not justified in taking the case from the jury. Umsted v. Scofield Eng. Const. Co., 203 Cal. 224, 228, 263 P. 799.”

Whether defendant had a clear opportunity to avoid the accident after he had actual knowledge of the perilous situation of the decedent, whether he could have avoided the accident by exercising ordinary care and whether defendant's conduct proximately caused the accident were questions of fact for the jury. Under the evidence, the jury was entitled to draw the inference that the decedent was totally unaware of his position of impending danger; that he failed to see the stop sign and defendant's approaching car; that the defendant acquired knowledge of the perilous position of the decedent when he, the defendant, was 75 to 100 feet from the intersection and that by the exercise of ordinary care, he could then have avoided the accident by slowing down, stopping his car or turning to the left. Moreover, after hearing the testimony, the jury viewed the scene of the accident and the knowledge so gained was independent evidence to be taken into consideration in determining the issues in the case. MacPherson v. West Coast Transit Co., 94 Cal.App. 463, 466, 271 P. 509; People v. Oliver, 86 Cal.App.2d 885, 887, 195 P.2d 296. The question of whether defendant's negligence was the proximate cause of the accident was for the jury. Mosley v. Arden Farms Co., 26 Cal.2d 213, 219, 157 P.2d 372, 158 A.L.R. 872; Wright v. Sniffin, 80 Cal.App.2d 358, 362, 363, 181 P.2d 675.

Defendant contends that the doctrine of last clear chance is inapplicable where the emergency arises suddenly and the defendant has only a second or two within which to act. In Bragg v. Smith, 87 Cal.App.2d 11, at page 15, 195 P.2d 546, at page 548, this court, in considering the application of the doctrine of last clear chance in a collision of trucks where the time element was involved, said: ‘The defendant actually discovered the situation and realized the danger while it was still possible to avoid the collision by the use of ordinary care on his part. The opportunity was clearly open to him to avoid the accident by turning either to his right or to his left. While it may be true that he had to act quickly, it is not unusual for a motorist to be confronted with such a necessity and it cannot be said, as a matter of law, that a distance of approximately 100 feet was not sufficient to enable him to have a clear chance to slightly alter the course of his vehicle. Common experience is to the contrary, and the evidence here is sufficient to support the court's finding that a last clear chance to avoid the accident existed after the defendant actually knew that the plaintiff was in a position of danger from which he would be unable to escape by any action which he could then take. Cady v. Sanford, 57 Cal.App. 218, 207 P. 45.’

We conclude that there was substantial evidence to support the findings of the jury and that the trial court erred in rendering a judgment notwithstanding the verdict. The judgment is reversed and the cause is remanded to the trial court with instructions to enter judgment in conformity with the verdict of the jury.

MUSSELL, Justice.

BARNARD, P. J., and GRIFFIN, J., concur.

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