SPARKS v. REDINGER

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

SPARKS et al. v. REDINGER et al.*

HOMEN v. SPARKS.

THOMAS v. REDINGER et al.

Civ. 16031, 16030.

Decided: June 23, 1954

Scott Conley, Keith, Creede & Sedgwick, San Francisco, Cresswell & Davis, Oakland, for appellants. James G. Quinn, Jr., William H. Quinn, Oakland, for respondents.

Defendant and cross-complainant Homen and defendant Redinger appeal from orders granting new trials to plaintiff and cross-defendant Charles K. Sparks and to plaintiffs Robert N. Sparks and Thomas. The new trials were granted on the sole ground that the court erred in refusing to give an instruction proposed by respondents on the doctrine of last clear chance.

The litigation arose out of a collision between an automobile driven by plaintiff and cross-defendant Charles K. Sparks in which the other plaintiffs were riding and a tractor pulling two trailers loaded with gravel owned by defendant and cross-complainant Homen and driven by Homen's employee Redinger. While the automobile was engaged in making a left-hand turn across the path of the tractor the tractor collided with the automobile.

The three respondents used Homen and Redinger for personal injuries. Homen cross-complained against the driver of the automobile, Charles K. Sparks, for damages to his equipment and the value of its loss of use. The jury brought in verdicts against all three plaintiffs on their complaints and a verdict for damages on the cross-complaint in favor of Homen against Charles K. Sparks.

Apart from the failure of the court to give the proposed instruction on last clear chance no complaint is made of any of the instructions. The jury was otherwise properly instructed on negligence, contributory negligence and proximate cause. The jury could only find for cross-complainant Homen on his cross-complaint, under the instructions given, if they found that Redinger, the driver of Homen's tractor, was not guilty of any negligence which proximately contributed to the collision. This being so appellants argue that the failure to give the last clear chance instruction was not prejudicial, since the last clear chance instruction is only applied by the jury when it finds that both parties were negligent. 19 Cal.Jur., Negligence, sec. 80, pp. 651–652. Thus it is argued that when the jury, as it did here, finds that one party was not guilty of any negligence proximately contributing to the injury there can be no place for the application of the doctrine of last clear chance.

Respondents reply that negligence ‘may consist of the failure to avoid an accident under the last clear chance doctrine’ and where the jury is not instructed on that doctrine in a proper case the jury might find a party free from negligence, whereas if it was instructed on the doctrine of last clear chance it might find the same party guilty of negligence in that he had the last clear chance to avoid the collision and did not exercise ordinary care to avoid it. Under the instructions given in this case such a result would not have been possible. The jury was instructed:

‘A person who, himself, is obeying the law and exercising ordinary care has a right to assume that others, too, will perform their duty and obey the law, and he has a further right to rely and act on that assumption, unless he knows, or in the exercise of ordinary care it would be apparent to him as a reasonable man that the contrary is true. Thus, it is not negligence for such a person to fail to anticipate injury which can come to him or to others only from a violation of law or duty of another.

‘However, this exeption to the above rule should be noted: the rights just defined do not exist when it is reasonably apparent to one, or in the exercise of ordinary care would be apparent to him, that another is not going to perform his duty. One is not justified in ignoring obvious danger although it is created by another's misconduct, nor is he ever excused from himself exercising ordinary care.’

This instruction was even more favorable on the question of the duty to use ordinary care in the face of the negligence of another than a last clear chance instruction would have been since it included the situation where such negligence ‘in the exercise of ordinary care would be apparent to him’, while the last clear chance instruction only applies where the party has actual knowledge of the other party's dangerous situation. 19 Cal.Jur., Negligence, sec. 82, p. 655. It is perfectly clear, in view of the instruction actually given and the finding of the jury under that instruction that appellant Redinger was not guilty of any negligence, that the giving of the last clear chance instruction could not have changed the result and the error, if any, in failing to give it was not prejudicial.

The situation here, because the judgment for cross-complainant can only rest on a finding that his driver was not negligent, is distinguishable from the cases relied upon by respondents where there is simply a verdict against a plaintiff on his complaint. In the latter case an appellate court cannot tell whether the verdict was based on a finding that defendant was not negligent, or on a finding that both parties were guilty of negligence, and so cannot say that the failure to give a last clear chance instruction was not prejudicial.

Orders granting new trials reversed.

DOOLING, Justice.

NOURSE, P. J., and KAUFMAN, J., concur.

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