PETERSON v. BURKHALTER (1951)

From a judgment in favor of plaintiffs after trial before a jury in an action to recover damages resulting from an automobile accident, defendant appeals.

Question: Was it proper for the trial court to give an instruction to the jury upon the doctrine of last clear chance?

Yes. The evidence being viewed in the light most favorable to plaintiffs (respondents) discloses that on April 10, 1948, at the intersection of Craner Avenue and Collins Street in the City of Los Angeles the following occurred:

Defendant was proceeding in a northerly direction on Craner Avenue traveling about 35 miles per hour about 50 feet south of its intersection with Collins Street when he observed plaintiff riding on a motor scooter while looking over his right shoulder in the opposite direction from which he was traveling. Plaintiff was proceeding east on Collins Street about 75 feet west of the intersection at about 30 miles per hour.

Defendant looked away and when he next saw plaintiff he was 4 or 5 feet from the left side of defendant's automobile in the intersection still looking back over his right shoulder. Defendant did not apply his brakes which were in good condition, nor sound his horn, nor swerve to the right until he was into the intersection and just prior to the time plaintiff's motor scooter hit the left rear door and running board on defendant's automobile causing plaintiff serious injuries.

Clearly from the foregoing evidence the trial court properly instructed the jury upon the doctrine of last clear chance, since the jury may have believed:

(a) That when defendant first saw plaintiff, the latter was not aware of the danger confronting him (Cady v. Sanford, 57 Cal.App. 218, 226, 228, 207 P.2d 45);

(b) That plaintiff by his own negligence placed himself in a position of impending danger of which he was wholly unaware (Gillette v. City and County of San Francisco, 58 Cal.App.2d 434, 442, 136 P.2d 611);

(c) That defendant as a reasonably prudent man should have known that plaintiff was in danger (Cady v. Sanford, 57 Cal.App. 218, 226, 207 P.2d 45);

(d) That defendant knew plaintiff was in danger; and

(e) That after knowing of plaintiff's danger defendant by applying his brakes, sounding his horn or changing his course had a clear chance of avoiding the accident, and that he did not avail himself of the opportunity which he had of avoiding the accident.

The foregoing constitute the essential elements of the doctrine of last clear chance which the jury, supported by substantial evidence, found to be present in the instant case.

Affirmed.

McCOMB, Justice.

MOORE, P. J., and WILSON, J., concur.