SILLS v. LOS ANGELES TRANSIT LINES

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District Court of Appeal, Second District, Division 3, California.

SILLS v. LOS ANGELES TRANSIT LINES et al.*

Civ. 18886.

Decided: July 14, 1952

Francis J. Gabel and Henry F. Walker, Los Angeles, for appellant. Melvin L. R. Harris and Trippet, Newcomer Yoakum & Thomas, Los Angeles, for respondents.

Appeal by plaintiff from an adverse judgment entered on a verdict in an action for damages for personal injuries.

The principal assignment of error is that the court refused to give an instruction requested by plaintiff on the doctrine of the last clear chance.

In determining whether the instruction should have been given, we must assume that the jury might have believed the evidence upon which the cause of action of the plaintiff—the losing party—is predicated, and that if the correct instruction had been given upon the subject the jury might have rendered a verdict in his favor. Selinsky v. Olsen, 38 Cal.2d 102, 237 P.2d 645. Each party is entitled to have his theory of the case go to the jury; and requested instructions, which are proper in form and substance, should not be refused merely because the trial court does not accept the theory upon which a party relies. Cole v. Ridings, 95 Cal.App.2d 136, 144, 212 P.2d 597.

The accident occurred about 6:30 p.m. on October 17, 1949, at the intersection of 52nd Street and Pacific Boulevard, Huntington Park. Pacific Boulevard, running north-south, is intersected by 52nd Street, running east-west. Extending from the north curb line of 52nd Street, Pacific Boulevard is divided into three portions: an unpaved private right of way in the center for streetcars in which defendant's streetcar tracks are laid; pavement for vehicular traffic on each side of the private right of way, the east side for northbound traffic, the west side for southbound traffic. Beginning at the north curb line of 52nd Street and continuing south, the entire area of Pacific Boulevard from curb to curb, and including the portion in which defendant's streetcar tracks are laid, is paved, i.e., there is no private right of way south of the north curb line of 52nd Street.

Prior to the accident plaintiff had been driving his automobile southerly on Pacific Boulevard in the lane next to the west side of defendant's right of way. As he approached 52nd Street, he intended and started to make a left turn in the intersection. As he did so, there was a northbound streetcar approaching the intersection from the south on the east tracks, traveling about 30 miles an hour. Plaintiff stopped his automobile on the west southbound tracks and faced in a southeasterly direction, leaving the east northbound tracks open. As plaintiff's automobile was thus stopped awaiting the passage of the northbound streetcar, a southbound streetcar operated by defendant-motorman struck plaintiff's stopped automobile at the left front door. Plaintiff's automobile came to rest about 60 feet from the point of collision and faced in a southwesterly direction against the west curb of Pacific and south of 52nd Street.

Prior to the collision the motorman had been operating the streetcar southerly on the west track in the private right of way. His last stop had been about 1,500 feet north of 52nd Street. He did not expect to make a stop at 52nd Street. The lights of plaintiff's automobile and of the streetcar were on.

Defendant-motorman testified that when he saw plaintiff's automobile starting its turn at the intersection his streetcar was about 85 feet away traveling about 20 miles an hour, and that when plaintiff stopped his car on the tracks the streetcar was about 75 feet away. He testified that he put on the brakes and rang the bell upon seeing plaintiff's car turn.

A passenger on the streetcar testified she was seated on the righthand side about 3 or 4 seats from the middle door, heard the operator ring his bell ‘extensively,’ and when he applied his brakes she looked out to the front and saw the stopped automobile on the tracks. At that time the streetcar was 75 or 80 feet north of the north curb line of 52nd Street, with the stopped automobile about 10 feet farther to the south. She testified that the clanging of the bell was loud and long and, after hearing it, she had to lean left, shift her position to see over or past others, and that it was after this that she saw the stopped automobile.

Plaintiff testified that as he started to turn left he looked to the north and saw the southbound streetcar about 4 blocks away. He looked to his right and saw the northbound streetcar about a half block or a block and a half away. He stopped to allow the northbound streetcar to pass. He kept looking from left to right. As he looked left he saw the southbound streetcar about a block away—‘It seemed to be going terribly fast.’ He thought of moving forward but could not because of the northbound car, or of backing and getting out, but by that time the southbound car was only about 6 or 7 feet away and then it struck him. He testified there was no change in the speed of the southbound streetcar from the time he saw it until it struck. He estimated that about 25 to 30 seconds elapsed between the time he brought his automobile to a stop on the tracks and the time he was struck. When he saw the southbound streetcar about a block away and coming toward him he looked toward the northbound car which was then approaching about 15 or 20 feet away. When he looked back again to his left all he could see was a big headlight and the big front of the southbound car.

The requested instruction on the doctrine of the last clear chance is set out in the margin.1 No instruction was given on the doctrine. The instruction requested is a correct statement of the law and should have been given. Girdner v. Union Oil Co., 216 Cal. 197, 203, 13 P.2d 915. We have recently had occasion to discuss the facts upon which an instruction on the doctrine of the last clear chance should be given. Hopkins v. Carter, 109 Cal.App.2d 912, 241 P.2d 1063. It is not necessary to repeat it. If the facts be such that the doctrine may be applied it is the duty of the trial judge to submit it to the jury by proper instructions. Wright v. Los Angeles Ry. Corp., 14 Cal.2d 168, 179, 93 P.2d 135.

Plaintiff's automobile was stopped in the south half of the intersection. Defendant-motorman saw it in the intersection when he was at least 85 or 90 feet away. The streetcar was then traveling about 20 miles an hour. There was evidence that at 20 miles an hour the streetcar traveled 20.3 feet a second. The jury could have found that two or more seconds elapsed between the first clanging of the bell and the time the passenger got into position so as to see the stopped automobile on the track. The jury, therefore, could have found that the streetcar was 120 feet or more from the automobile when the motorman first saw it and began ringing his bell. About 30 seconds elapsed between the time plaintiff brought his automobile to a stop and the time it was struck. An expert testified that a streetcar, traveling at 20 miles an hour, could be stopped in 60.6 feet braking time. The motorman did not change the speed of the streetcar from the time he first saw plaintiff's automobile making a left turn until the collision. The speed of the streetcar at the instant of the collision was such as to knock the automobile about 60 feet. It thus appears, considering the evidence most favorable to plaintiff, that the jury could have found that after seeing the automobile stopped on the track the motorman had ample time, in the exercise of ordinary care, to bring the streetcar to a stop and that he had the last clear chance to avoid the collision.

An instruction stating the doctrine of the last clear chance is proper when the evidence shows: “[1] That plaintiff has been negligent and, as a result thereof, is in a position of danger from which he cannot escape by the exercise of ordinary care; and this includes not only where it is physically impossible for him to escape, but also in cases where he is totally unaware of his danger and for that reason unable to escape; [2] that defendant has knowledge that the plaintiff is in such a situation, and knows, or in the exercise of ordinary care should know, that plaintiff cannot escape from such situation, and [3] has the last clear chance to avoid the accident by exercising ordinary care, and fails to exercise the same, and the accident results thereby, and plaintiff is injured as the proximate result of such failure.' Girdner v. Union Oil Co., 216 Cal. 197, 202, 13 P.2d 915, 917.' Selinsky v. Olson, 38 Cal.2d 102, 237 P.2d 645, 646, Peterson v. Burkhalter, 38 Cal.2d 107, 237 P.2d 977, 978. All of the elements of the doctrine find support in the evidence. It may be inferred that plaintiff was negligent and, as a result thereof, in a position of danger from which he could not escape by the exercise of ordinary care; the motorman had knowledge that the plaintiff was in such a situation and knew, or in the exercise of ordinary care should have known, that plaintiff could not escape from such situation; the motorman had the last clear chance to avoid the accident by exercising ordinary care, failed to do so, the accident resulted thereby, and plaintiff was injured as the proximate result of such failure.

The refusal of the court to give the instruction on the doctrine, in view of the state of the record, compels a reversal of the judgment. Bonebrake v. McCormick, 35 Cal.2d 16, 19, 215 P.2d 728.

Other points made by plaintiff are not likely to occur on a retrial and need not be discussed.

Judgment reversed.

FOOTNOTES

1.  ‘You are instructed that negligence on the part of a plaintiff does not necessarily preclude such plaintiff from recovering damages even though the accident would not have occurred but for such negligence. Thus, if you find from the evidence that plaintiff, whether negligently or otherwise, was in a position of danger and if you find either that it was physically impossible for him through the exercise of ordinary care to escape from said danger or that he was unaware of impending danger in his position, and if you find that defendant motorman had actual knowledge of plaintiff's dangerous position and that said defendant motorman knew or in the exercise of ordinary care should have known that plaintiff was either unaware of the danger impending in the situation or unable to escape therefrom in the exercise of ordinary care, and if you further find that thereafter said defendant motorman had a clear opportunity to avoid the accident and could have done so by exercising ordinary care but that he failed to avail himself of that opportunity and as a proximate result of such failure struck and injured plaintiff, then you are instructed that plaintiff is entitled to a verdict against the defendants for any injury suffered by plaintiff and proximately caused by the said accident.’

VALLÉE, Justice.

SHINN, P. J., and PARKERWOOD, J., concur.