FUENTES v. LING (1941)

In this action the plaintiff sued to recover damages for injuries suffered when he was hit and knocked down by an automobile driven by the defendant on Third street in San Francisco. The trial court made findings in favor of the plaintiff. From the judgment the defendant appealed.

Third street between Kirkwood and LaSalle avenue, where the accident occurred, extends northerly and southerly. It is about eighty feet wide. Double street car rails occupy the center of the street. The entire street is divided by white lines making six lanes. Kirkwood and LaSalle avenue which bound the block in which the accident occurred are parallel cross–streets and extend beyond Third street both easterly and westerly for some distance and Third street and its intersections are marked by white lines, traffic buttons, safety zones for street car passengers, and other signs and guides usual and customary on heavily traveled arterial boulevards of San Francisco. Third street is a main highway between San Francisco and all points south. With the exception of a vacant lot at the southwest corner of Kirkwood and Third street the frontage of the block on the west side of Third street is completely filled and occupied by stores, and on the east side are stores, apartments, a public garage, flats, and a vacant lot. All of the above buildings were occupied and made it a business district under the traffic ordinance. The block between Kirkwood and LaSalle is about 200 feet long.

On the evening of December 30, 1938, the sun set before 5 p. m. At about 7 o'clock on that evening the plaintiff Robert Fuentes, dressed in a dark suit, was in the act of crossing Third street from east to west at a point in about the middle of the block bounded by Kirkwood and LaSalle avenues. At the same time the defendant Lee Ling was in the act of driving south, on the westerly side of Third street, going to San Mateo. He was driving in the lane second from the west curb. The weather was clear. The block was well lighted, and Christmas electric light streamers were strung throughout the entire block. In the middle of the block his front right bumper, fender, and light contacted Robert Fuentes, knocking him down and injuring him. Neither Lee Ling nor his son Henry, who was riding with him in the front seat, saw Fuentes before the impact although each was looking at the road in front. Fuentes was knocked over toward the west sidewalk. In the place where he fell his head was near the curb and his feet were beside the right front wheel of the automobile. He lay squarely across the street, at right angles to the former course of Lee Ling's automobile which traveled only a few feet after Fuentes was struck. The front bumper of Ling's machine was five feet, or thereabout, south of where Fuentes lay. The plaintiff testified he saw defendant 200 feet distant when he, the plaintiff, was crossing the street car tracks. No obstructions obscured the view of either party.

The answer denied negligence on Ling's part, alleged contributory negligence on Fuentes' part, and set up the defense of unavoidable accident.

The findings were drawn following the language of the pleadings. There was no finding of facts applying the doctrine of last clear chance.

After a trial without a jury, the judgment was in favor of plaintiff for $4,373, and costs. Defendant made a motion for a new trial. The motion was denied and he appealed from the judgment.

The first point made by the defendant is that plaintiff was guilty of contributory negligence. He calls to our attention that the zone where the accident occurred is “within the central traffic district or a business district. * * *” He also calls to our attention that section 10 of Article 3 of Ordinance 7691, New Series, of San Francisco provides: “When within the central traffic district or a business district no pedestrian shall cross a roadway other than by a cross–walk.” An examination of the record discloses that the plaintiff, beyond the peradventure of a doubt, was at the time of the accident directly violating the provisions of said section. Such act on his part was negligence per se. It further appears that the acts of the plaintiff were contemporaneous, concurrent, continuing and contributory with the acts of the defendant. Under such circumstances there is no room for reasonable minds to differ and plaintiff's violation of the ordinance becomes a proximate cause of his injury as a matter of law, unless there are facts which bring the case within the last clear chance doctrine. Meincke v. Oakland Garage, Inc., 11 Cal.2d 255, 256, 79 P. 2d 91. But, as hereinabove recited, there was no finding on the doctrine of the last clear chance and that subject is not before us. New York L. Oil Co. v. United Railroads, 191 Cal. 96, 101, 215 P. 72. However, in Young v. Southern Pacific Co., 189 Cal. 746, at page 755, 210 P. 259, 262, the court said: “In other words, the doctrine of last clear chance excludes from the operation of its underlying principle every case wherein it may be said that the negligence of the injured party was contemporaneous, concurrent, continuing, and contributory with the negligence of the party inflicting the injury. [Citing cases.]” Bearing in mind the plaintiff's contention that he was not intoxicated, that he was in possession of all of his faculties, that the street was fully lighted, that the street was not occupied so as to obstruct the view of the plaintiff of the acts of the defendant, nor the view of the latter with the acts of the plaintiff, neither can be said to have had the last clear chance. Young v. Southern Pacific Co., supra.

Down to this point we have assumed that the evidence showed the defendant Ling was negligent. As to that fact the evidence was conflicting. However, as to one material fact there was no conflict in the evidence. The defendant testified that he did not see the plaintiff, that his machine hit something and then he saw the plaintiff lying on the ground, and the evidence showed that the defendant stopped his machine almost instantly. It is the settled law of this state that the doctrine of the last clear chance is not applicable to one who should have known but who did not know of the danger of the other party. Starck v. Pacific Electric R. Co., 172 Cal. 277, 283, 156 P. 51, L.R.A.1916E, 58.

The plaintiff cites and relies on Quinn v. Rosenfeld, 15 Cal.2d 486, 102 P. 2d 317. It is not in point. In that case the court took much pains to show that at the time of the accident involved the plaintiff Quinn was not violating the provisions of any statute or ordinance. On the other hand the case at bar is controlled by the case entitled Meincke v. Oakland Garage, Inc., supra.

The judgment is reversed.

STURTEVANT, Justice.

NOURSE, P. J., and SPENCE, J., concurred.