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

Arcadio MORENO, Plaintiff-Respondent, v. LOS ANGELES TRANSIT LINES, a corporation, and Harold Franzlick, Defendants-Appellants.

Civ. 20542.

Decided: May 09, 1955

Melvin L. R. Harris, Henry R. Thomas and Henry F. Walker, Los Angeles, for appellants. Sampson & Dryden, Patrick D. Horgan, Jacob Swartz, Los Angeles, for respondent.

Personal injury action. Verdict for plaintiff. Defendants Los Angeles Transit Lines and Harold Franzlick, as appellants, make no claim of insufficiency of evidence to support the verdict or of excessive damages. Counsel rely upon a claim that it was error to instruct the jury upon last clear chance, and, alternatively, that the instruction given erroneously stated that doctrine.

It is necessary for the court to inform the jury on that matter ‘when, on any valid theory, there is substantial evidence to support the application of that principle. * * * if the facts be such that the doctrine may be applied, it is the duty of a trial judge to submit it to a jury by proper instructions * * *.’ Wright v. Los Angeles Ry. Corp., 14 Cal.2d 168, 179, 93 P.2d 135, 140; and the judge must view the evidence ‘in the light most favorable to the application of the doctrine and indulging every reasonable inference in support thereof’. Daniels v. City and County of San Francisco, 40 Cal.2d 614, 617, 255 P.2d 785, 787.

The accident occurred at the intersection of Vermont Avenue and 110th Street in the City of Los Angeles. In that area Vermont, which runs north and south, has two roadways with defendant's private right of way intervening between them. The east roadway is for northbound traffic and the west one for southbound. Likewise the east car track carries cars going north and the west track is for those traveling south. Plaintiff's automobile, eastbound on 110th Street, was struck by defendant's northbound street car.

The only witnesses to the immediate facts of the accident were plaintiff, defendant Franzlick (the motorman), Mrs. Ella Lowry (a passenger on the street car) and Frank Simpson, who was leaving a cafe on the west side of Vermont and north of 110th Street. The accident occurred at or near the intersection of the northbound or east track with the center line of 110th Street. Plaintiff stopped at the stop sign on the west side of Vermont, waited for four or five southbound automobiles to pass; then started forward in low gear; he testified that when he had almost cleared the west curb line and was some 72 to 75 feet from the point of impact, he looked to the right or south and saw the northbound car, which later struck his automobile; that it was then about 325 feet from the intersection; that he then looked left or north for traffic, automobile or street car, and saw none except a second group of southbound automobiles about 150 feet away; that he then looked to the south again and saw the street car when the front of his automobile was about 50 feet from the point of accident. He placed the street car some 255 feet to the south at that time (respondent's counsel says 225 feet). At or about that 50 foot distance he shifted into second gear, the car having a standard gear shift. His own speed was fixed by him at 12 miles or less, never more than 12. Plaintiff never made any estimate of the speed of the street car, either on the ground or in court but did say that it was going a little more slowly when seen the second time. At all times before and after each of the occasions of looking at the street car, he had his head turned to the north and was looking that way though there was no traffic of any kind approaching from that direction except the group of automobiles which he had seen about 150 feet away. The motorman said that when first seen by him the plaintiff was looking to the north and continued to do so; that after first seeing plaintiff he continued to watch him. Plaintiff further testified that when he arrived practically at the northbound track he looked again to the right and the street car was almost upon him, some 15 feet away. His car was hit in the center and back of center. Plaintiff swore that he heard no gong or bell or other noise from the street car. The motorman testified that he began to ring his gong as soon as he saw plaintiff (when the street car was 80–90 feet from the impact) and continued to do so until the collision occurred; that he also began at once to stop his car, began this as soon as he saw plaintiff. No witness placed the speed of the street car at more than 25 miles at any time, except that plaintiff had it traveling 325 feet while he went 75 feet, thus making a speed of about 50 miles an hour. Defendant Franzlick testified that he first saw plaintiff's automobile when the street car was a few feet south of the safety zone, some 80 to 90 feet from the point of impact; that he was then going about 20 miles an hour; that he saw plaintiff traveling at 20 to 25 miles and looking north, plaintiff being 80 to 90 feet from ultimate collision; that he, Franzlick, then began to ring his gong vigorously and applied his brake in an immediate and continuous effort to stop the car. Also that plaintiff slowed his auto slightly and then picked up speed at once (this may have been done in the process of shifting gears).

If Franzlick's version be accepted as correct there was no last clear chance for the uncontradicted expert evidence was that it would take 132 feet to make a service stop at that speed, but an emergency stop would reduce the braking distance by 20 per cent or 22 feet, making a total distance 110 feet; but Franzlick had only 80–90 feet and so could not stop in time to avert an accident. The passenger, Mrs. Ella Lowry, corroborated this version to a considerable extent. She was in the front section of the car, heard the bell start to ring fast when the car was near the south end of the loading zone, observed that the brakes were applied at the same time; that the car was then going only 20 miles an hour and its speed was down to 15 miles at the time of accident. She also said the automobile was increasing speed and going as much as 30 miles an hour. Frank Simpson, who was on the west side of Vermont, said his attention was attracted by the bell as he came out of a cafe, that he saw the automobile and the street car moving at about the same speed (which he could not estimate); that they were close together and that the crash came quickly, maybe in less than a second.

If plaintiff saw the street car some 325 feet to the south (as he testified) when he was 72 to 75 feet from the northbound track and traveling at 20 to 25 miles an hour, he was in no danger from which he could not extricate himself. The expert testimony was that that automobile at the speed of 25 miles could bestopped in 62 feet including reaction time; but, as the car was in second gear, that fact would increase the distance by 5 per cent of the braking distance (35 feet), approximately 2 feet, making a total of 64 feet.

According to plaintiff the next time he saw the street car he was at a point which places the front end of his automobile 50 feet west of the northbound track; it scales this distance on the map in evidence. If he was going 25 miles an hour (twice the speed he gave) he could stop in 64 feet, no less. On those assumptions he was too close to the impact to extricate himself. And it was a permissible inference that the motorman knew it, for he was ringing his gong vigorously and trying to stop the street car and had been doing so ever since he first saw plaintiff. If the street car was going 25 miles an hour, the top speed fixed by any witness who attempted such an estimate, a normal stop would require 200 feet; an emergency stop would take 20 per cent less distance. In order to give the motorman a last clear chance he must be placed back at or near the 225 foot distance and at a speed of not over 25 miles; at that speed he could have made an emergency stop in 160 feet (or 20 per cent less than the normal distance of 200 feet).

The doctrine of last clear chance is stated in Girdner v. Union Oil Co., 216 Cal. 197, 202, 13 P.2d 915, 917: ‘The necessary elements, as deduced from the well-considered cases, may be stated in substance as follows: 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; 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 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.’ This language has been repeated so often in the decisions as to become a classic definition of the rule. The crucial part of it in the case at bar is this: ‘* * * a position of danger from which he cannot escape by the exercise of ordinary care * * * 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.’

Counsel stress the matter of unawareness and appellants cite authorities to the effect that ‘the theory that he (plaintiff) was oblivious to his danger because he did not again look toward the street car cannot be invoked to show his inability to escape * * *.’ Rasmussen v. Fresno Traction Co., 15 Cal.App.2d 356, 369, 59 P.2d 617, 623. Counsel also invoke this language of Palmer v. Tschudy, 191 Cal. 696, 700, 218 P. 36, 38: ‘The rule * * * applies equally when she is wholly unaware of the danger and for that reason unable to escape it. But the rule also requires that if she is aware of the danger, or becomes aware of it, she must thereafter exercise ordinary care for her own protection. If, being aware of the danger and able to escape it by exercising ordinary care, she neglects to do so, she cannot invoke the last clear chance rule to place the burden of the resulting loss upon the other party.’

The facts in our case do not afford plaintiff the benefit of the ‘unawareness' phase of the rule. Plaintiff twice looked and saw the approaching street car, which he knew could not turn aside for him; he made no estimate of its speed, gave no testimony that he thought he had time to cross ahead of it; devoted his attention to the north, from which direction no threat of danger was approaching; gave no explanation of this; claimed no forgetfulness or other lack of appreciation of the threat of danger from defendant's car; and he could have stopped his car in safety after seeing the street car the first time. Viewed only from the standpoint of unawareness it can only be said that plaintiff's own negligence was of a continuing nature which constituted one of the proximate causes of the accident. Lest it be thought that this ruling is contrary to that of Peterson v. Burkhalter, 38 Cal.2d 107, 237 P.2d 977, we call attention to the fact that that opinion proceeds upon the assumption that, in point of fact, the plaintiff was unaware of his peril at all pertinent times.

But the matter of danger from which plaintiff could not physically extricate himself by exercise of ordinary care takes on a somewhat different complexion. Of course, plaintiff ‘was not in a position of danger until he arrived at a point at which he could no longer stop or slow down in time to avoid a collision.’ Rodabaugh v. Tekus, 39 Cal.2d 290, 294, 246 P.2d 663, 665. On the other hand, ‘the application of the doctrine of last clear chance is not dependent upon an admission by the defendant that he expected that there might be a collision.’ Peterson v. Burkhalter, supra, 38 Cal.2d 107, 111, 237 P.2d 977, 979.

If plaintiff was going 25 miles an hour and was 50 feet back from the point of collision; if he then saw the street car at least 225 feet to the south and traveling 25 miles or less per hour; if the motorman was then applying his brakes in an effort to stop the car; if all these inferences be drawn the basis for a last clear chance finding is present; for plaintiff could not stop in less than 64 feet, but defendant, inferentially aware of plaintiff's predicament, could stop within 160 feet. It will be observed that this last clear chance would have to be reached through rejecting parts of plaintiff's testimony as well as parts of Franzlick's, accpeting other portions, and matching them in a way never intended by the witnesses. Plaintiff's speed must be taken at 25 miles, instead of his estimated 12, or he would be able to stop in time; defendant must have been 160 feet or more back from point of impact or he would be unable to stop in time to avert it; he must have seen plaintiff when he was that far back and have then realized plaintiff's danger, as evidenced by application of the brakes in an attempted stop, although the only evidence of when or where he saw him is the testimony of himself and of Mrs. Lowry; both of them fixed these occurrences at a point some 80–90 feet from the impact, when it was too late for the street car to stop. And it must be further inferred that the motorman, having applied his brake at a place where he could stop safely, did then release or ease it to the point where it was too late to stop; of this there is no evidence except inference; plaintiff testified merely that the car was going more slowly the second time he saw it (at 225 feet); and Franzlick and Mrs. Lowry said it was down from 20–25 miles to 15 miles or less at the time of accident. While the suggested process of reasoning would be a permissible one for the jurors to pursue deliberately or subconsciously, it nevertheless affords such an attenuated basis for last clear chance as to require close scrutiny of any instruction on the subject.

Respondent's counsel argue for a last clear chance upon the basis of a street car speed of 15 miles at the time the motorman first saw plaintiff; they are not explicit as to plaintiff's then location, but Franzlick said he first saw him at a point which scales on the map 50 feet west of the northbound track. The expert witness did testify that an emergency stop could be made by the street car in 66 feet if it was going 15 miles when the brake was applied; and Franzlick said he saw plaintiff when the street car was 80–90 feet from the point of impact, and he began the stopping process at once. This would give a last clear chance if it be assumed that plaintiff was then in peril from which he could not extricate himself. Franzlick says plaintiff himself was then 80–90 feet from the accident. If so, and if plaintiff was going 12 miles, as he says, he had ample time to stop and hence was not in the required position of peril; if plaintiff was traveling 25 miles (twice his own estimate) and was 80–90 feet west of the track he could stop in 64 feet and again he was not in peril except of his own making through failing to stop or slow down. Again we have a situation which makes a correct instruction a matter of vital consequence.

We deem it unprofitable and therefore do not pause to differentiate the factual situations involved in Peterson v. Burkhalter, supra, 38 Cal.2d 107, 237 P.2d 977; Daniels v. City and County of San Francisco, supra, 40 Cal.2d 614, 617, 255 P.2d 785; Sills v. Los Angeles Transit Lines, 40 Cal.2d 630, 255 P.2d 795; Rodabaugh v. Tekus, supra, 39 Cal.2d 290, 294, 246 P.2d 663; Sparks v. Redinger, 44 Cal.2d 121, 279 P.2d 971. The principles there applied are consistent with the views herein expressed; and it is an unsatisfactory and misleading process to try to reason by analogy from one set of facts to another.

Appellants' attack upon the instruction which was given centers upon the stated condition ‘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.’ The entire instruction (BAJI 205) reads: ‘There has grown up in our law a certain reasoning process that we sometimes call to our aid in analyzing the facts of an accident case, and which is known as the doctrine of last clear chance. It is permissible to use the doctrine only after we first find, and you may not use it unless and until you first shall have found, that in the events leading up to the accident in question, both the plaintiff and defendant were negligent.

‘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.’

Appellants' point is that ‘defendant is not called upon or required to take steps in such case until the time arrives when he realizes or ought to realize plaintiff's inability to escape’ and that ‘the given instruction requires defendant to have taken such measures upon acquiring knowledge of plaintiff's position * * * instead of as of the time defendant realizes or ought to realize plaintiff's inability or unawareness.’ In other words, the argument is that clause Third requires actual knowledge of plaintiff's position and clauses Fifth and Sixth require defendant to avoid the accident if he has a clear opportunity to do so after acquiring knowledge of that position, whereas the law requires such activity on defendants' part to begin with actual or imputed realization of the fact that plaintiff cannot extricate himself from the existing danger by the use of due care. The authorities support the claim that defendants' duty to act arises at this later time, if it be later in fact. Starck v. Pacific Electric Ry. Co., 172 Cal. 277, 283–284, 156 P. 51, L.R.A.1916E, 58; Johnson v. Southwestern Eng. Co., 41 Cal.App.2d 623, 626, 107 P.2d 417; Palmer v. Tschudy, supra, 191 Cal. 696, 700, 218 P. 36; Daniels v. City and County of San Francisco, supra, 40 Cal.2d 614, 620–621, 255 P.2d 785; Sills v. Los Angeles Transit Lines, supra, 40 Cal.2d 630, 637, 255 P.2d 795; see also, Rest. of Torts, § 480, comment (b) on page 1258; 21 Cal.L.Rev. p. 261.

A motorman, whose inability to deviate from the path marked by the rails gives him a qualified right of way, Scott v. San Bernardino Valley Traction Co., 152 Cal. 604, 610, 93 P. 677; McHugh v. Market St. Ry. Co., 29 Cal.App.2d 737, 742, 85 P.2d 467, is entitled to assume that a motorist who is headed across his path will exercise ordinary care and will stop before it is too late to avert a collision; not until he is or should be alerted to the probability of the motorist failing to yield is he required to begin the process of stopping his car, Thompson v. Los Angeles, etc., Ry. Co., 165 Cal. 748, 755, 134 P. 709; Rasmussen v. Fresno Traction Co., 15 Cal.App.2d 356, 367, 59 P.2d 617; the mere fact that the driver of the automobile is looking in another direction is not necessarily enough to apprize him of the probability of a collision (Rodabaugh v. Tekus, supra, 39 Cal.2d 290, 294, 246 P.2d 663); the motorman is not required at all times to make a correct analysis of the situation, to know the distance and speed of the automobile and the driver's intentions; until he is aware, as any ordinarily prudent man in his position would be cognizant, of the fact that the automobilist is in a position from which he cannot extricate himself through use of due care, the motorman may assume that he will do so; when that knowledge is acquired in fact or imputed to him because he should know it, he must begin to avail himself of a last clear chance, if there be one.

Clause First of the instruction presupposes that plaintiff's negligence has put him in a position of danger; Second, that he be unable to escape that danger because of physical impossibility or unawareness of the danger; Third requires that defendant have ‘actual knowledge of plaintiff's perilous situation.’ First and Second require plaintiff to be in a predicament from which he cannot escape by his own efforts. Third requires actual knowledge on defendant's part that plaintiff is in that particular position, but under the authorities actual knowledge is requisite only with respect to plaintiff's position, not his inability to rescue himself. On that latter phase of the situation actual knowledge is not necessary. In the language of Girdner v. Union Oil Co., supra, 216 Cal. 197, 202, 13 P.2d 915, 917, it is requisite that defendant know ‘or in the exercise of ordinary care should know, that plaintiff cannot escape from such situation.’ If clause Third were intended to mean that defendant must have actual knowledge of the factors set forth in both First and Second it would be erroneous. But it is not so intended for it is immediately followed by Fourth which sets out the requirement of actual or imputed knowledge of plaintiff's inability to extricate himself from danger. The structure of the instruction matches First with Third and Second with Fourth. Then error creeps in for Fifth and Sixth require defendant to act to save plaintiff from himself immediately after the defendant acquires ‘actual knowledge of plaintiff's perilous situation.’ This phrase of Fifth is quoted from Third and plainly applies to plaintiff's dangerous position, rather than a realization, actual or implied, of his inability to extricate himself. It allows no time or opportunity for the realization covered by Fourth and accorded defendant by the applicable authorities above-cited. The instruction is erroneous.

Respondent has relied upon the asserted fact of approval of a similar instruction in Gillette v. City and County of San Francisco, 41 Cal.App.2d 758, 765, 107 P.2d 627, 630. The one there given bears number 56 in the record; it seems to be an earlier form of BAJI 205; it is referred to in the briefs as BAJI 111. The argument was that defendant Godfrey was looking straight ahead, plaintiff was in front of him, and knowledge of plaintiff's perilous position was imputed to him under the language of Hoy v. Tornich, 199 Cal. 545, 553, 250 P. 565; hence that the requirement of actual knowledge should not have been imported into the instruction. It was with reference to that argument that the court said: ‘The plaintiff complains because one of those instructions contained a provision, ‘That the defendant had actual knowledge of plaintiff's perilous situation.’ The complaint is without merit. Herbert v. Southern Pacific Co., 121 Cal. 227, 232, 53 P. 651.' Moreover, the differences between the two instructions in paragraphs Fourth and Fifth were such that the Gillette ruling cannot constitute a controlling precedent here. Specifically paragraph Fifth of the instruction there given read: ‘That the defendant had a clear opportunity to avoid the accident and could have done so by exercising ordinary care.’ It did not contain the words ‘after the defendant acquired actual knowledge of plaintiff's perilous situation,’ he phrase that appellants attack here.

The BAJI 205 is the only instruction which was given on the subject of last clear chance in the instant case. ‘It must be assumed that the jury understood the instructions and correctly applied them to the evidence.’ Zuckerman v. Underwriters at Lloyd's, 42 Cal.2d 460, 478, 267 P.2d 777, 788.

It is clear from the proof that plaintiff was guilty of negligence which continued to the moment of the accident unless the causal chain was broken by defendant's failure to exercise a last clear chance. It was, therefore, vitally important that the jury be correctly advised as to the limitations of the doctrine. That was not done here and we have concluded that the error was prejudicial.

Judgment reversed.

ASHBURN, Justice pro tem.

SHINN, P. J., and VALLÉE, J., concur.