MARTIN v. VIERRA (1939)

Supreme Court of California.

MARTIN v. VIERRA.

Civ. 10541.

Decided: October 09, 1939

Frank V. Campbell, Robert E. Hayes, and Walter E. Rankin, all of San Jose, for appellant. Jensen & Holstein and Robert E. Cassin, all of San Jose, for respondent.

The petition for hearing is denied. However, we expressly withhold our approval of the following statement in paragraph four of the opinion of the District Court of Appeal concerning the rule of last clear chance, 93 P.2d 261, 263: ‘In any event, the situation presented by the evidence was such as to justify the conclusion that after defendant observed plaintiff in the street in a position of peril of which she was obviously unaware, he had the last clear chance to avoid colliding with her by diverting the course of his automobile to the left, which he readily could have done if he had been driving prudently and with due care, instead of swerving to the right.’

PER CURIAM.

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