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District Court of Appeal, First District, Division 1, California.

Jeanne DORAN, Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation, Defendant and Respondent.

Jules BESSETTE, Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation, Defendant and Respondent.

Nos. 15816–16091.

Decided: October 06, 1954

Fitz-Gerald Ames, Sr., San Francisco, for plaintiffs and appellants. Dion R. Holm, City Atty., Jerome Cohen, Deputy City Atty., San Francisco, for defendant and respondent.

Consolidated appeals on settled statements in two cases separately tried, arising from the same accident. Plaintiff Doran appeals from an order granting a new trial after a judgment on a jury verdict for $25,000 in her favor. Plaintiff Bessette appeals from a judgment on a jury verdict in favor of defendant.

Question Presented.

In the Doran case, the trial court gave the jury instructions on last clear chance, and then, solely on the ground that it erred in so doing, granted a new trial. In the Bessette case the court refused to instruct on that doctrine. The sole question here is whether in either case the evidence required instructions on last clear chance. (No criticism is made of the form of the instructions offered by either plaintiff.)


Our task is to examine the evidence most favorable to the plaintiffs and the reasonable inferences therefrom, to determine if there is substantial evidence from which the juries could have concluded that defendant had the last clear opportunity to avoid the accident.

Doran Case.

The accident occurred at about 7:30 p. m. March 17, 1950, approximately 120 feet west of the intersection of Union and Fillmore Streets, San Francisco. Defendant's trolley-bus, traveling westward on Union, had crossed Fillmore and stopped in front of the drug store on the northwest corner of the intersection. There were two sets of street car tracks on Union Street. The bus was stopped parallel to the curb with its right side approximately 8 feet from the curb with its right wheels just to the right of the northernmost rail of the car tracks. Thus, a portion of the bus was standing between the rails of the northerly set of tracks. Bessette, aged 74, accompanied by Jeanne Doran, parked his car on the south side of Union Street, about 100 feet west of Fillmore. Leaving the car, the two proceeded west on the south sidewalk about a car's length behind Bessette's car and then stepped out into Union Street, intending to ‘jay walk’ across the street. (They were the between 100 and 120 feet westerly of the bus, stopped on the opposite side of the street.) Jeanne testified that when a few feet from the curb they stopped. She ‘looked around,’ saw the bus stopped to her right at the corner, saw no moving traffic, and then proceeded straight, not diagonally across the street. When they arrived between the two sets of tracks she looked to her right and saw the bus ‘in about the same position, just beginning to move in my direction.’ She did not look in that direction again. She remembers nothing after that. She was dressed in a brown coat with a white blouse and beige skirt. Bessette was wearing a light gray coat. She could not say how close the bus was when she last saw it or whether it had left the corner. At that time the bus was moving. Neither plaintiff stopped in the middle of the street nor did they talk while crossing. There were lights on the street but she could not ‘see the show [the Rio Theatre].’ They walked across at a normal gait and did not run at any time.

Bessette testified that they started to cross the street about 20 to 22 feet west of where he parked his car; that they stopped when about 6 or 7 feet out from the curb. He saw the bus stopped at the corner but saw no moving traffic. ‘The back wheels of the bus' then extended a little bit into the intersection. Visibility was good. He could see to his left beyond the next street and see the houses ‘up there’ and see parked cars up and down the block. When he reached the center of Union Street he noticed that the bus did not ‘go hardly at all, it just beginning to move’ from its stopped position. He continued to go straight ahead and did not look again. He remembers nothing after that. His suit was a sort of gray. His overcoat was ‘not too dark, not too light, some kind of brown, I think.’ He did not stop when in the middle of the street but continued to walk. Plaintiffs did not talk while crossing. He was walking at a normal gait and did not hurry. He could not say how fast the bus was going when he last saw it although he knows how to gauge the speed of an automobile.

Ralston, a street lighting expert, testified concerning tests made at the scene of the accident under conditions like or very similar to those existing the night of the accident. His readings indicate that there was, at the time of the accident, the amount of light recommended by the Illuminating Engineering Society for a street of that nature. These recommendations are followed by lighting engineers who plan and install lighting and by the United States Government. In the place of least light he could read the small print of a newspaper without any difficulty. ‘The luminaries in the vicinity of the accident would put light on people who crossed, as plaintiff claims she did, and a good percentage of that light would be reflected in all directions. On a normal evening, as far as lighting is concerned, the lights from those standards would reflect on the people (crossing as plaintiff claims she did) and light them to a certain extent. * * * I cannot say from my tables or measurements whether or not the bus operator would be able to see such a person against that dark background.’

George Dolan, the street lighting inspector, testified that the street lights present were lighted and operating properly at the time of the accident. They were the old fashioned type, 220 watts, 16 feet above the ground.

The bus driver testified that the steering wheel on the bus was harder to turn than the average. The bus headlights were on low beam. In driving along these streets he had found that the low beam sufficiently lighted up the street for bus operating purposes. ‘I could see whatever it was necessary to see in operating the bus by reason of these dim lights and the street lights.’ The street lights and the marquee and sign lights on the Rio Theatre were on and his headlights lighted up the roadway from curb to curb, or from parked car to parked car. His eyesight was perfect, including the fields of side vision. Looking ahead from the stopped position near the drug store he could see parked cars the full length of the block on both sides of the street. The street was deserted and there was nothing to obstruct his view. Looking straight ahead down the street he started the bus by pressing the accelerator all the way to the floor. He first saw plaintiffs when they were 15 to 20 feet ahead of the bus and in the center of the street. They were looking straight ahead in the direction in which they were traveling. He continued to watch them until they passed out of his sight on the right front of the bus. They did not stop, slow down, or turn their heads to look in the direction of the bus at any time. He saw them cross the southerly rail of the northerly set of tracks. He did not sound his horn. The highest rate of speed attained by the bus after starting was between 15 and 20 miles an hour. Under the conditions he could stop the bus at that speed within 23 to 26 feet including reaction time. At first he could give no explanation why he did not see plaintiffs sooner. He had traveled approximately 2 to 3 coach lengths (a coach is 35 feet long) from the start until he first saw plaintiffs. Then plaintiffs were between the rails of the southerly tracks and were running. As soon as he saw them he applied his brakes and swerved to his left simultaneously. They were struck by the right half of the front of the bus. The bus traveled 4 to 6 feet between the points of impact and stop. The plaintiffs were running at an angle north across towards the theatre, away from him, and did not stop running as long as he saw them. They were wearing dark clothing. The stores on both sides of the street, excepting the corner drug store and the theatre, both on the north side, were dark. The southerly part of Union Street approximately opposite the point where he first saw plaintiffs was a dark background. He had to use both hands to turn the wheel and so could not sound the horn. One reason he did not see plaintiffs earlier was the dark clothing on the dark background.

Witness Gainer, whose bedroom window in a two story flat faces on Union Street, was attracted by a woman's screaming voice. When he first looked out he did not see any one lying on the street but later he saw the motorman bending over a body which was under the front part of the bus and of which he could see only the hand and part of the hip. He saw this because the light from the headlights was reflecting right over the body.

Witness Elm lives in the second story of a building adjoining to the east the Rio Theatre. He heard the sound of a moan or groan, looked out a window on the second floor. He did not know whether the bus headlights were on or not. The theatre and street lights were on. He saw something light colored move under the bus and saw the lower half of the lady's leg. He had no trouble seeing the man lying on the pavement. There is a street light at the west end of the witness' building on the north side of the street and one directly opposite on the south side of the street. The marquee and theatre sign lights were on. The lady under the bus was wearing a light blouse. She was wearing a black or navy blue suit. In the general area of the accident the light was not very good and it was fairly dark.

Witness Caldwell, a police officer, found the front of the bus stopped 138 feet west of the west curb of Fillmore, on a mark of skin and flesh. This mark was 8 feet long, and not curved. The right front wheel of the bus was 12 to 18 inches south of the northernmost rail and the right rear wheel 6 inches or less from that rail. There were two street lights just a little beyond the location of the bus, one on each side of the street. These lights and the theatre marquee lights were on. The street lights were the old fashioned type. The distance from the beginning of the mark to where the lady was lying was approximately 12 feet. From his investigation, he concluded that the plaintiffs were crossing the street at least 100 feet westerly of the westerly curb line of Fillmore Street where there is a marked crosswalk. There was no evidence of skid marks.

Witness Engler testified that Jeanne told him at the scene of the accident that just before plaintiffs stepped off the curb she saw the bus stopped at the corner and that they continued on and did not see the bus until just before they were struck. She pointed the direction in which she was crossing the street, which to the witness ‘indicated diagonally.’ The clothing worn by plaintiffs appeared to him as ‘dark’ under police department classifications. Witness Corley discussed the mechanical action of the bus' brakes.

The Bessette Case.

Substantially the same testimony was given in this case by both plaintiffs, by defendant and by witnesses Gainer, Elm, Caldwell and Engler as in the Doran case. Witnesses Ralston and George Dolan did not testify. There were two additional witnesses. Elm, Jr., testified he came to the scene of the accident between 7:30 and 8:00 p. m. He was approaching the northeasterly corner of Union and Fillmore when he noticed the bus, and saw something lying in the street. He saw this from a distance of 180 feet. He could not make out what it was from that distance. As he approached he saw the man lying on the street and the woman pinned under the right front wheel. From his knowledge of the lighting of the area, the street was well lit. Roughly at a distance of 85 feet he could see something on the street at the side of the bus. Witness Howard, a draftsman employed by defendant, brought street lighting records. They showed 10 lights between the east side of Fillmore and the east side of Steiner (the next street westerly) on Union Street the night of the accident. The globes were approximately 16 1/2 feet above the street, and were equipped with 220 watt lamps, 400 candlepower. The records showed no shortages or other power failure causing the lights to go out after they were turned on at 6:34 that night.

Last Clear Chance.

The elements of this doctrine and the test for its application are well established. In Daniels v. City & County of San Francisco, 40 Cal.2d 614, 619, 255 P.2d 785, 788, the court said: ‘An instruction stating the doctrine is proper when there is evidence showing: ‘(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 suitation, 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.’ [Citations.]'

In Bolton v. Martin, 126 Cal.App.2d 178, 271 P.2d 991, 995, the court said: ‘The trial court is justified in refusing such instructions only where it can be said that, as a matter of law, under no reasonable interpretation of the evidence, and regardless of conflicts, the elements of the doctrine are not shown.’ (Citations.)

Let us, then, apply the elements of the doctrine as set forth in the Daniels case to the evidence under the rule set forth in the Bolton case.

(1) Plaintiff through his own negligence is in a position of danger from which he cannot escape by the exercise of ordinary care. Here the question is not that it was physically impossible for plaintiffs to escape, but whether they were totally unaware of their danger and for that reason unable to escape. Plaintiffs' own testimony of jaywalking, of crossing the pathway of a bus which they saw starting up not over 120 feet away from them without determining its speed and thereafter walking at a normal gait and without paying any further attention to the bus, or the driver's testimony that when he first saw plaintiffs they were running diagonally across the center of the street, not looking in his direction, is substantial evidence from which the jury could have found all of the factors of this element present.

(2) Defendant has knowledge, or in the exercise of ordinary care should know, that plaintiff is in such a situation and cannot escape. The driver's own testimony is that when he first saw plaintiffs they were running and not looking in his direction. This, plus the testimony of plaintiffs, would authorize a finding by the jury that element (2) was present.

The third element raises the most serious question. (3) Defendant has the last clear chance to avoid the accident by exercising ordinary care, and fails to do so, proximately causing plaintiff's injury. The presence of this element depends upon when the driver first saw plaintiffs. If the jury is bound by his testimony that they were only 15 feet away, then this element is out of the case. But if the jury was entitled to disregard his testimony and if the circumstances were such that the jury could reasonably infer that he saw plaintiffs in time to have avoided the accident, then the element is present. It is well settled that the jury is not required to accept the driver's version even though there is no direct evidence to the contrary. The rule is stated in Hall, Last Clear Chance, p. 61, § 110: ‘* * * under all the facts and circumstances shown by the evidence it was proper to find that the defendant, despite his denial of knowledge, or despite the absence of direct testimony on the subject, was actually aware of the plaintiff's danger in time to avert it.’ Disregarding the driver's testimony as to the precise moment he saw plaintiffs, as the jury had the right to do, there is substantial evidence from which the jury could have concluded that the driver saw plaintiffs in time to have avoided the accident. There was evidence that the lighting was good. After the accident some of the witnesses could see the bodies lying on the ground at distances comparable with the driver's distance when he first started the bus. The driver himself said that the street was sufficiently lighted for the purpose of operating the bus, and he could see the whole length of the block, from parked car to parked car. The plaintiffs were well into the street and out from the parked cars before the bus started. A person is presumed to see all that is within the range of his vision. See Curland v. Los Angeles County Fair Ass'n, 118 Cal.App.2d 691, 696, 258 P.2d 1063, 1066, where the court upheld the following instruction: “General human experience justifies the inference that when one looks in the direction of an object clearly visible, he sees it. When there is evidence to the effect that one did look, but did not see that which was in plain sight, it follows that either some part of such evidence is untrue or the person was negligently inattentive.”

In Selinsky v. Olsen, 38 Cal.2d 102, 105, 237 P.2d 645, 647, the court said: ‘It is true that defendant testified that he did not see plaintiff's car until he was directly behind it, when plaintiff drove his car into the line of traffic in front of him, and that plaintiff's car was in motion at the time of the impact. Other evidence shows, however, that defendant was looking straight ahead as he approached plaintiff's car and his view was unobstructed. It may be inferred therefrom that he saw plaintiff's motionless car extending into the line of traffic. [Citations.]’

From the evidence the jury could have found that plaintiffs were ‘clearly visible’ after leaving the parked cars. Even though plaintiffs' clothing was dark it is a reasonable inference, under all the facts, that the driver saw plaintiffs from the time they came out from the parked cars. It is not a conclusive inference nor the only one which the jury could reasonably draw. Plaintiff could have stopped his bus in 23 to 26 feet, including reaction time.

Defendant contends that had the driver seen plaintiffs earlier than he testified, nevertheless the doctrine would not apply until the plaintiffs ‘arrived at such a point as to be in peril, and this was the point where [they] could no longer escape injury by exercising ordinary care’ Dalley v. Williams, 73 Cal.App.2d 427, 435, 166 P.2d 595, 599, and that point would not be until plaintiffs were practically directly in front of the bus. Defendant contends that a driver, if exercising ordinary care, had a right to assume that plaintiffs would exercise ordinary care and would not proceed into the path of the bus but would stop when they reached its pathway. See Behne v. Pacific Elec. Ry. Co., 30 Cal.App.2d 437, 442, 86 P.2d 843. These are correct principles of law, but their application here, as defendant would have them applied, ignores the evidence in the case. Not only were plaintiffs ignorant of their peril, but the driver from the first time he saw them knew it. According to him, he watched them all the time after first seeing them and they were running to cross his pathway and not looking in his direction. At first he could give no explanation for not seeing them sooner, although later he concluded the color of their clothing was a cause. It was for the jury to determine if it found that the driver saw them in time to have avoided the accident, whether he was exercising reasonable care to assume that persons so proceeding would stop before entering his pathway.

In Peterson v. Burkhalter, 38 Cal.2d 107, 237 P.2d 977, 979, the plaintiff when seen by the defendant was looking in the opposite direction from which he was traveling. The defendant did not sound his horn, and contended, as does defendant here, that Peterson was not in “a position of danger” until he was so near defendant's path of travel that he could not by the use of ordinary care escape a collision. Concerning this contention the court said, 38 Cal.2d at page 110, 237 P.2d at page 979: ‘This reasoning is based upon the fallacious assumption that the doctrine of last clear chance is limited in application to a situation where the plaintiff is physically helpless to prevent the impending accident through the exercise of ordinary care. Although Burkhalter cites decisions in which the plaintiff, at the time of discovery, was in the path of the approaching vehicle, neither the opinions in those cases nor any logical reason justifies such a limitation upon the rule. See Girdner v. Union Oil Co., supra, [216 Cal. 197, 13 P.2d 915]; Bonebrake v. McCormick, 35 Cal.2d 16, 215 P.2d 728. When Peterson was first seen by Burkhalter, the vehicles were 75 to 50 feet, respectively, from the intersection, and traveling at speeds which would place them in the intersection at the same time. To argue that Peterson was not then in ‘a position of danger’ is to disregard reality.

‘As to the contention that Peterson may not have the benefit of the doctrine of last clear chance because he was physically able to prevent the accident by stopping or turning, Burkhalter ignores the fact that the inattentive plaintiff, as well as the physically helpless one, comes within the scope of the rule. It applies ‘* * * 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 * * *.’'

It should be pointed out that the jury, in addition to reasonably inferring that the driver saw plaintiffs from the time they were beyond the parked cars, could also have determined from the evidence that when the plaintiffs were in the center of the street, as they testified, the bus had not yet left its position at the corner (at least 100 feet from the point of impact), and the driver then saw them. They then went some 11 to 14 feet while the bus went close to 100 feet, during all of which time the driver knew, as he testified, that they were not looking in his direction and hence apparently unaware of their danger. Actually, they were in front of the bus in less than 11 to 14 feet as they were hit by the right front (the far side from them). Under such circumstances, the jury could have concluded that there was a clear duty on the part of the driver either to sound his horn or slow down, and therefore he had a clear opportunity to avoid the accident. Certainly it was a jury question whether the driver under the circumstances of this case was exercising reasonable care to assume that plaintiffs, running as the driver says they were, diagonally away from the bus and apparently unaware of it, would stop before reaching its pathway.

Palmer v. Tschudy, 191 Cal. 696, 218 P. 36, is not applicable here for the reason, first, that the facts are different. There the court held that the plaintiff was aware of the danger from the approaching automobile and by the exercise of ordinary care could have avoided the accident, and hence the first element above mentioned required to apply the doctrine was not present. Secondly, the court there relied on the narrow interpretation of the doctrine given in Young v. Southern Pacific Co., 189 Cal. 746, 753, 210 P. 259, to the effect that one is not in a position of danger until he actually gets in the pathway of the oncoming vehicle. This interpretation, like that given in Rodabaugh v. Tekus, 39 Cal.2d 290, 294, 246 P.2d 663, was held in Daniels v. City and County of San Francisco, supra, 40 Cal.2d 614, 621, 255 P.2d 785, not to apply where the driver is aware, as here, of the fact that the other person is coming directly into his path. In the Daniels case the court pointed out that cases like Dalley v. Williams, supra, 73 Cal.App.2d 427, 166 P.2d 595, involving a collision between two fast moving vehicles at an intersection, and Johnson v. Sacramento Northern Ry., 54 Cal.App.2d 528, 129 P.2d 503, involving a collision between a fast moving vehicle and a train at a railroad crossing (both of which were cited by defendant here) were not in point in determining a case where the relative time, speed and distance factors were different than in those cases. The same is true as between the facts in those cases and in ours. Haerdter v. Johnson, 92 Cal.App.2d 547, 207 P.2d 855, where it was held that the doctrine did not apply, is not applicable for the reason that there it was held that there was evidence of a physical obstruction to the defendant's vision. Korchak v. Pacific Elec. Ry. Co., 9 Cal.App.2d 89, 48 P.2d 752, involved an accident on the company's private right of way, and obviously is not in point here.

In both cases there was substantial evidence which required the giving of instructions on last clear chance.

In the Doran case, the order granting the new trial is reversed. In the Bessette case, the judgment is reversed.

BRAY, Justice.

PETERS, P. J., and FRED B. WOOD, J., concur.

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