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District Court of Appeal, First District, Division 2, California.


Civ. 14855.

Decided: July 15, 1952

Tobriner & Lazarus, San Francisco, for appellants. Dion R. Holm, City Atty. of City and County of San Francisco, George E. Baglin, Deputy City Atty., San Francisco, for respondents.

Appellants sued for personal injuries sustained by plaintiffs Laura E. Daniels and Kathaleen Smith and for property damage to the Daniels' Kaiser sedan, arising from a collision between a municipal bus driven by respondent Urdahl and the Kaiser driven by Mrs. Daniels. The verdict was for defendants and plaintiffs appealed from the judgment against them after a new trial was denied.

On Saturday, March 5, 1949 in the late afternoon Mrs. Daniels was driving the automobile in a general northerly direction on Congdon Street approaching its intersection with Alemany Boulevard, in San Francisco.

The boulevard is a signposted ‘through highway’ see §§ 82.5, 552, 577, Vehicle Code, running in a general easterly-westerly discretion. It is quite winding, changing direction every few feet, and is divided by long concrete ‘Islands'. The roadway for eastbound traffic has three lanes, the outer one 17 feet 6 inches wide, the middle one 10 feet wide, and the inner one 10 feet 6 inches wide. Congdon Street ends at the boulevard.

The northerly terminal block of Congdon Street is on a hillside which slopes downward from Turnbull Street to its foot at the boulevard. At the southeasterly corner of Congdon and Alemany there is an arterial stop sign directed to traffic traveling northerly down Congdon, posted a few inches inside the curbstone of the sidewalk. The Mission Street viaduct crosses Alemany 750 feet westerly of Congdon. Easterly from the viaduct the boulevard slopes slightly toward Congdon and curves to the southeast. At the southwest corner of Alemany and Congdon there were several large bill-boards which obstructed the view toward the southeast of eastbound drivers on Alemany and the view toward the west of northbound drivers on Congdon.

The bus was gasoline-propelled, about 35 feet long and a little less than 8 feet wide. It was traveling easterly in the middle lane of Alemany, having just made a stop at the viaduct, when its driver first saw the Daniels' car. His first view of it was fleeting. He said ‘I could see it between the billboard and the house for a few scant seconds.’ His reference is to the billboards already mentioned and the last house on Congdon, as plaintiff's car passed that opening in coming down the hill and approaching Alemany. According to Urdahl's testimony when next he saw the car it had entered Alemany and was moving across the boulevard where, he said, it stopped in the middle lane, headed northerly. He testified that he applied his (air) brakes for about 30 or 40 feet, then released them, accelerated and steered for the inside lane to try and pass in front of the car, and finally, when a collision seemed inevitable, again applied his brakes.

Mrs. Daniels testified that when she saw the bus to her left she accelerated her speed in attempting to avert a collision. The left front of the bus hit the left real of the Kaiser just forward of its rear bumper, and spun it around so that it came to rest in the boulevard's 3-lane roadway for westbound traffic. A 72-foot skid mark on Alemany tells the tale of the last braking of the bus and a 24-foot ‘brush’ mark of the car's tires on the pavement tells the tale of the spinning around of the Kaiser.

Mrs. Daniels was thrown from her car by the impact and injured. Mrs. Smith, who was riding beside her suffered less serious injuries than Mrs. Daniels. The car had to be repaired, and was later sold.

Other facts appear later.

Appellants' first contention is that the only reasonable inference from the evidence is that the accident proximately resulted from the bus driver's negligence, without any contributory negligence of the appellants. Their second contention is that there is not the slightest evidence of contributory negligence on the part of Mrs. Smith. The discussion of these matters will be deferred.

The most serious question presented for decision is appellants' third contention, namely, that their proposed instruction on the last clear chance doctrine should have been given.

Appellants tendered an instruction, patterned after that given in Root v. Pacific Greyhound Lines, 84 Cal.App.2d 135, 190 P.2d 48, and following BAJI 205, p. 310 which the court refused. Respondents do not question its correctness as a statement of the doctrine but contend that the evidence does not make out a case justifying any last clear chance instruction.

With respect to instruction in general the court said in Raymond v. Hill, 168 Cal. 473, 479, 143 P. 743, 745: ‘But the court was not under duty to model its instructions solely upon the evidence given on behalf of plaintiff. Its duty was to give instructions expounding the law upon any reasonable theory of the case finding support in the evidence.’ (Emphasis added).

With respect to last clear chance instructions in particular, the court in Bonebrake v. McCormick, 35 Cal.2d 16, 18, 19, 215 P.2d 728, 729, cites Raymond v. Hill, supra, and says: ‘In determining whether the court erred in refusing to instruct on the doctrine of last clear chance, the evidence must be viewed in the light most favorable to plaintiff's case. Brown v. McCuan, 56 Cal.App.2d 35, 36, 132 P.2d 838.’

In the Bonebrake case the judgment was reversed on the sole ground that a last clear chance instruction should have been given. In Brown v. McCuan, [132 P.2d 839] in discussing a last clear chance instruction, this court said: ‘Contrary to the usual practice on appeal, therefore, the facts will be viewed in the light most favorable to plaintiff and appellant on the above theory in order to determine whether they would have supported a verdict in plaintiff's favor.’

In Alberding v. Pritchard, 97 Cal.App.2d 443, 445, 217 P.2d 1012, 1013, where a last clear chance instruction was given, the court in affirming said: ‘In considering whether the record contains evidence sufficient to justify the court in giving an instruction upon the doctrine of last clear chance, the reviewing court must consider all the evidence admitted by the trial court. It must ignore conflicts and view the evidence in the light most favorable to the contention that the doctrine is applicable, indulging every reasonable inference supporting the application of the doctrine. If after such review and consideration the doctrine can apply under any reasonable view of the evidence the instruction is proper.’ (Emphasis added.)

The recent case of Selinsky v. Olsen, 38 Cal.2d 102, 237 P.2d 645, cites Alberding v. Pritchard approvingly and follows Bonebrake v. McCormick, supra. In Selinsky v. Olsen the trial court granted a new trial because no last clear chance instruction had been given and the ruling was affirmed. See, also, Jones v. Yuma Motor Freight Terminal Co., 45 Cal.App.2d 497, 498, 114 P.2d 438 and Overacker v. Key System, 99 Cal.App.2d 281, 283, 221 P.2d 754; Hopkins v. Carter, 109 Cal.App.2d 912, 241 P.2d 1063.

The rule just discussed, and restated in these recent cases, is not mentioned at all by either side in their briefs on this appeal.

Respondents open their discussion as follows: ‘Urdahl, the bus driver, had neither the last chance nor a clear chance to avoid this accident. Mrs. Daniels, on the contrary, could have remained stopped or could have stopped her automobile at any time within one foot. She it was who had the last clear chance. Instead of availing herself of her opportunity to avoid the accident, she blindly accellerated into the path of the bus which she had previously observed swinging north to pass in front of her.’

The function of the trial court when considering the propriety of a last clear chance instruction was not to pass upon those questions but simply to determine whether there was any substantial evidence to support plaintiffs' theory. Whether, as counsel say, ‘Urdahl * * * had neither the last chance nor a clear chance * * *’ and whether ‘Mrs. Daniels * * * it was who had the last clear chance’ were ultimate issues of fact for the jury under plaintiffs' theory of the case. The rejection of the instruction removed them from the jury.

The problem of this court is to determine from the record whether there is substantial evidence to support plaintiffs' theory and on such an examination ‘We must view the evidence most favorable to the contention that the doctrine is applicable * * *’, Selinsky v. Olsen, supra, [38 Cal.2d 102, 237 P.2d 646] ‘under any reasonable view of the evidence’. Alberding v. Pritchard, supra.

One of the most recent statements of the elements of the last clear chance rule is found in the Selinsky case, 38 Cal.2d 102, at pages 104, 237 P.2d 645, 646, as follows: “(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.'

We are satisfied that there was ample evidence to have supported a finding that plaintiff Laura Daniels as a result of her own negligence got herself into a position of danger from which she could not escape by the exercise of ordinary care. Three defense witnesses testified that she went through the stop sign at the entrance to Alemany Boulevard, a through highway, a violation of § 552, Vehicle Code, and stopped in the middle lane thereof, a 55-mile-per-hour highway.

Defendant Urdahl testified that as plaintiff's car emerged into Alemany at about 10 miles per hour he continued to watch it (having had a glimpse of it ‘a few scant seconds' before as it came down Congdon) as it continued directly straight across the street and slowed down to a complete stop ‘almost in the center lane.’ And in a report, made the day after the accident, he wrote: ‘This car as far as I could see did not make a stop at arterial * * *.’

The witness Jester testified that he first saw the car as it came down Congdon and ‘rolled into the street’; that it did not stop before entering Alemany, but stopped momentarily in the center lane with its front therein. He testified that ‘when it reached Alemany I would say it was going about ten miles an hour, and slowed right down to nothing.’ Instead of stopping at the corner he testified it went out into the middle of the street and stopped. He said he was absolutely sure it did not stop before proceeding into the intersection.

Betty De Angelis, a passenger on the bus, testified that she was seated just behind the driver, facing southerly, and first saw the car when it was at the top of the hill on Congdon, again saw it when it appeared between the signboards and the house (where Urdahl testified he too saw it) and saw it again when it had entered the intersection. She said ‘it moved out slowly to the intersection, and when it got to about the middle, the second lane, it stopped. It came to a dead stop’ for ‘about a second’. She testified elsewhere that the car was in the middle lane when it stopped. After coming into the intersection at about 5 to 10 miles an hour she said it continued at that speed until it got out in the middle and then stopped.

Mrs. Daniels and Mrs. Smith testified that they stopped at the arterial stop sign, within a foot of the curb line, for at least 30 seconds. However, under the rule all conflicts must be ignored.

In considering the second element of the doctrine, namely, ‘that defendant has knowledge that the plaintiff is in such a situation, [of danger] and knows, or in the exercise of ordinary care should know, that plaintiff cannot escape from such situation,’ the following rule quoted approvingly in Peterson v. Burkhalter, 38 Cal.2d 107,237 P.2d 977, 979, from Cady v. Sanford, 57 Cal.App. 218, 226, 207 P. 45 is of guidance: “It was not necessary that appellant should actually know that an accident was inevitable if he failed to exercise care. It is enough if the circumstances of which he had knowledge were such as to convey to the mind of a reasonably prudent man a question as to whether respondent would be able to escape a collision.”

In Jones v. Yuma Motor Freight Terminal Co., 45 Cal.App.2d 497, 501–502, 114 P.2d 438, 440 the court said ‘Knowledge of the dangerous situation of the plaintiff can be imputed to the defendant when the circumstances are such as to convey to the mind of a reasonable man that the plaintiff is in a position of peril. Nicolai v. Pacific Electric Ry. Co., 92 Cal.App. 100, 267 P. 758.’ The Yuma case was followed in Alberding v. Pritchard, supra, 97 Cal.App.2d 443, 445, 217 P.2d 1012.

Urdahl first saw the car in the brief interval as it passed between the billboard and the house, and next when it entered Alemany. He kept his eyes on it. However, when it commenced to slow down while crossing his path an altogether different situation confronted him. In the nature of things he could not possibly know why it was slowing down, whether from mechanical trouble or not, in other words, whether it was in a trap. It slowed to a stop in the middle lane. Whether under the rule last cited this was enough to alert a reasonable man, was a jury question.

The time, then, when Urdahl first saw the car slowing down across his path, became of primary importance since upon that factor depends the ultimate jury question whether he then had a last chance or a clear chance to avert a collision. And the question of time of course means the distance of the bus from the intersection.

In attempting to distinguish Root v. Pacific Greyhound Lines, 84 Cal.App.2d 135, 190 P.2d 48, respondents say: ‘There the plaintiff did not jump his truck forward from a standing position into the path of the bus when the bus was so close that it was impossible for its driver to avoid a collision. * * * The evidence in that case failed to show that the plaintiff there could have done anything to avoid the accident, for example, that he could have stopped in one foot.’ These arguments do not touch the point. The question is not what the bus could have done after the car suddenly started up or ‘jumped’ from its stop in the middle lane. The real question concerns the situation before the car even stopped, when Urdahl admittedly saw it slowing down in his path. The question which the jury would have had to solve—had last clear chance been laid before them—would have concerned the distance of the bus from the car when it first showed signs (to Urdahl) of slowing down.

Urdahl testified that he did not see whether there were any passengers in the car and frankly said that he ‘was not particularly interested who was in it’. He saw that a woman was driving, but that was as far as he remembered observing. Obviously he had no way of telling whether she was aware of her peril, or wholly oblivious.

Mrs. Daniels testified that when she first saw the bus approaching she was in the middle lane and it was about 200 feet away, or with the front of the bus at about the west end of the ‘island’, which would be about 180 feet. Mrs. Smith testified that when she first saw the bus they were ‘well into the second lane’ and it was approximately half a block away (she used as a measure not the long block from Congdon to the viaduct, but a Hayes Street block which counsel agreed is 412 feet) which would mean about 200 feet. If the driver of the car could see the bus, then Urdahl could see the car. Under the rule discussed earlier the testimony of the two women would be that which was most favorable to their last clear chance theory. Betty De Angelis testified that the bus was ‘about half way in the island when it started slowing down’ (the ‘island’ being about 180 feet long). And there was a 72-foot skid mark leading into the point of collision. We are satisfied that there was substantial evidence to bring the case within the second element. That being so, and the instruction being proper, the question was for the jury whether Urdahl had the last clear chance to avoid the accident by exercising ordinary care. See Hopkins v. Carter, supra, 109 Cal.App.2d 912, 241 P.2d 1063.

We think this is a stronger last clear chance case than that of Root v. Pacific Greyhound Lines, supra, where the giving of the instruction was approved. The slowing down of plaintiff's car to a stop in the middle lane of a 55-mile, 3 lane highway, makes this the stronger of the two cases.

In our opinion it was prejudicial error to reject the instruction.

We deferred the discussion of appellants' first contention, that ‘The only reasonable inference from the evidence is that the accident * * * resulted from negligence on the part of the bus driver, without contributory negligence by the injured appellants.’

We are satisfied that sufficient facts have been stated to make it apparent (as far as this heading is concerned and eliminating of course all last clear chance questions) that the record presents a typical fact case in which the evidence, and the reasonable inferences therefrom, would support a verdict either way. There was a sharp conflict as to whether the car stopped before entering Alemany and on other questions involving negligence and contributory negligence.

In appellants' second attack on the instructions they contend that the court erred in instructing as a matter of law that the prima facie speed limit for the defendants was 55 miles per hour.

Such questions usually arise when the claim is made that the limit has been exceeded, but here it arises for the reason that the jury was told that ‘Because of the 55-mile * * * limit on Alemany Boulevard, the driver of a vehicle northbound * * * is required to exercise a greater amount of care than she would in entering a highway on which there was a lower speed limit.’

Appellants claim that the jury was misinformed and that the question whether the area was a residence district with a 25-mile limit, § 511 Vehicle Code, ‘would be a jury question and not one for judicial notice.’ This problem has been definitely settled by the recent cases of Reynolds v. Filomeo, 38 Cal.2d 5, 236 P.2d 801, 805, and Guerra v. Brooks, 38 Cal.2d 16, 236 P.2d 807, which hold that signposting is the sole criterion. In the Reynolds case the court quotes § 511 which (after specifying various lower speed limits) prescribes a 55-mile limit “under all other conditions unless a different speed is established as provided in this code and signs are in place giving notice thereof.” (The emphasis is the Supreme Court's). The court then says that ‘now, as before, no area has the prima facie speed limit of a * * * residence district unless it is signposted.’

Respondents' witness Jester testified that a 25-mile sign was posted for west-bound Alemany traffic ‘right at the edge of the viaduct.’ He did not believe any signs were posted for east-bound traffic, but was not sure. If there had been a 25-mile sign for traffic approaching the Congdon Street intersection the defense could have readily proved it, and it would have been to their interest to do so. Jester's testimony supplied sufficient foundation for the 55-mile instruction, to say nothing of the other evidence showing that Alemany Boulevard lacked the requisite dwelling house density under §§ 90, 90.1 Vehicle Code. The sign ‘right at the edge of the viaduct’ directed to west-bound traffic marked the entrance of Alemany traffic into a business or residence district lying to the west thereof and meant nothing to traffic eastward of it on either side of Alemany.

There was no error in giving the 55-mile instruction.

Appellants' third attack on the instructions is that the one given on the effect of § 2055, Code Civ.Proc. was erroneous and misleading. Defendant Urdahl was called by plaintiffs as an adverse witness and questioned at considerable length. The following instruction was given: ‘I instruct you that testimony given under section 2055 * * * is just as much evidence in the case as any other testimony properly received. Such testimony is to receive the same consideration from the jury in determining the facts as any other testimony. Such testimony, if believed by the jury and if otherwise sufficient, will sustain a verdict against the plaintiffs in this case.’

Appellants argue that ‘the instruction should have explained that any such testimony elicited by the plaintiffs should weigh for them in so far as it was favorable, but that it should be disregarded in so far as it was unfavorable, if the matters to which it referred were not satisfactorily established by other evidence’. (Emphasis added.) They cite People v. Mahoney, 13 Cal.2d 729, 736, 91 P.2d 1029, 1033, and Dempsey v. Star House Movers, Inc., 2 Cal.App.2d 720, 722, 38 P.2d 825.

The emphasized language is a correct statement of the rule when it comes to a consideration of motions for (a) nonsuit, (b) directed verdict, and (c) judgment notwithstanding the verdict, but not when the case is submitted on its merits. The Mahoney and Dempsey cases illustrate what we have just said.

People v. Mahoney was an appeal by the plaintiff from a judgment on a directed verdict in favor of defendant. In reversing, the court in discussing § 2055 testimony, said that ‘on the motion for a directed verdict it would weigh for the plaintiff in so far as it was favorable. In so far as it was unfavorable it would be disregarded. Smellie v. Southern Pac. Co., 212 Cal. 540, 299 P. 529; Dempsey v. Star House Movers, Inc., 2 Cal.App.2d 720, 38 P.2d 825.’ (Emphasis added.)

The Dempsey case was an appeal from a judgment of nonsuit. There a defendant while being examined under § 2055 gave testimony which unquestionably was favorable to his own side. In reversing, the court held that it was evidence in the case ‘to be considered together with any other evidence in the light most favorable to plaintiff when the court is determining a motion for nonsuit.’ [Dempsey v. Star House Movers, Inc., 2 Cal.App.2d 720, 38 P.2d 826.] Citing the Smellie Case; emphasis added.

Marchetti v. Southern Pacific Co., 204 Cal. 679, 269 P. 529 (nonsuit reversed), is cited in both the Dempsey and Smellie cases. There, 204 Cal. at page 686, 269 P. at page 532, the court said: ‘While the two trainmen, who were called for cross-examination under section 2055 * * * testified that they gave the required signals, both by ringing the bell and sounding the whistle, the plaintiffs, especially upon a motion for a nonsuit, would not be concluded by their evidence; it being the duty of the court upon a motion for a nonsuit to accept the evidence most favorable to the plaintiffs.’ (Emphasis added.)

Appellants cite Smellie v. Southern Pacific Co., 212 Cal. 540, 556, 299 P. 529, an appeal from a judgment entered on a directed verdict (which was reversed) where at pages 555–559 of 212 Cal. at pages 535–537 of 299 P. the court extensively discusses § 2055. At page 558 of 212 Cal. at page 536 of 299 P. it quotes from Marchetti v. Southern Pacific Co. what we have quoted above and concludes the discussion, 212 Cal. at page 559, 299 P. at page 537, by saying that testimony cited under § 2055 ‘is, of course, evidence in the case and may be considered in determining the issues of the case upon the trial or final hearing by the court, or, if the case is before a jury, by the jury. When the action is before a jury, however, the duty of weighing this evidence is with the jury and not with the court upon a motion for a nonsuit or directed verdict.’ (Emphasis added.)

In Dorn v. Pichinino, 105 Cal.App.2d 796, 234 P.2d 307, § 2055 is again discussed at some length. There testimony favorable to the defense was given by one of the defendants while on the stand, called by plaintiff under § 2055. In holding that such testimony was in the case for all purposes we took pains to say, 105 Cal.App.2d at page 800, 234 P.2d at page 310:

‘We hasten to add, parenthetically, that this rule is confined to the weight and effect of such evidence at the time when a cause is finally submitted after a trial on the merits, and has nothing to do with the situation presented on a motion for nonsuit or a directed verdict, where such evidence is viewed quite differently. This cause was submitted by defendants for decision on its merits as soon as plaintiff rested, hence the rule is fully operative in this case.’ There the testimony favorable to the defense (the prevailing parties) was given by a defendant while testifying under § 2055 during plaintiff's case in chief.

The present case was submitted to the jury on its merits. In such circumstances the language of the instruction was correct under the authorities.

Appellants' second contention, namely, that ‘There was not the slightest evidence * * * upon which to base a finding of contributory negligence on the part of appellant Kathaleen Smith’, and their last attack on the instructions, namely, that the ones submitting the issue of contributory negligence on her part were contrary to both the law and the evidence, may be properly discussed together.

In the first place, there is no claim, and could be none, that the negligence of Mrs. Daniels, if any, could be imputed to her guest, Mrs. Smith, Edwards v. Freeman, 34 Cal.2d 589, 592–593, 212 P.2d 883. Any negligence chargeable to Mrs. Smith would have to be based on her own conduct.

The only words or acts of Mrs. Smith which, by any possibility, could be pertinent to the present inquiry are the following:

‘Q. When you looked to your left did you see any traffic coming at all down Alemany? A. No.

‘Q. And I understand there was some conversation between Mrs. Daniels and yourself before you started up? A. Well, to the effect that Mrs. Daniels said that it all looked clear and we might just as well go across.

‘Q. Were those remarks made before the machine started? A. Yes * * *

‘Q. And now, did you make any observation for traffic or did you leave that up to Mrs. Daniels? A. She said to me, that ‘It looks pretty clear’, and I said, ‘Yes, it does.’

‘Q. Did you look yourself? A. Yes, I glanced both ways * * *

‘Q. And you saw nothing coming? A. I didn't see anything coming.

‘Q. And you agreed with Mrs. Daniels that was clear? A. Yes, I did.’

The Supreme Court has recently said that ‘an automobile passenger is bound to use reasonable care for his own safety’. Miller v. Peters, 37 Cal.2d 89, 94, 230 P.2d 803, 806; see, also, 3 Cal.Jur. p. 853, § 83. That being a jury question, a general instruction to that effect would have been proper, but the court went further and instructed as follows: ‘If you find that the plaintiff Kathaleen Smith did not look carefully for traffic eastbound on Alemany Boulevard, and that she told Mrs. Daniels that Alemany Boulevard looked clear when in fact the bus was approaching so closely as to constitute an immediate hazard, the plaintiff Kathaleen Smith was in such case guilty of negligence.’ Since it has been held that a guest is not ‘charged with the responsibility for observing the condition of the traffic upon the highway’, Murphy v. National Ice Cream Co., 114 Cal.App. 482, 489, 300 P. 91, 94, citing Martinelli v. Poley, 210 Cal. 450, 292 P. 451 and Marchetti v. Southern Pacific Co., 204 Cal. 679, 269 P. 529, the instruction perhaps went too far. On a new trial we think it will be sufficient to instruct only on the general proposition indicated above, that a guest is bound to use reasonable care for his or her own safety.

The reversal herein is based solely on the refusal of the last clear chance instruction which, in our opinion, was prejudicial error for the reasons and on the authorities discussed earlier.

The appeal from the order denying a motion for new trial—a non-appealable order—is dismissed.

The judgment appealed from is reversed.

GOODELL, Justice.

NOURSE, P. J., and JONES, Justice pro tem., concur.