*1 July 14, 1952.] A. 22246. In Bank. No. [L. Appellants, al., S. et v. PAUL DESSIE RODABAUGH TEKUS, Respondent. *2 Guy,
Elmer R. Hirson & Horn and Theodore A. Horn for Appellants. Respondent.
Robert A. Cushman for SPENCE, J. Plaintiffs, the widow and adult sons of Rodabaugh, brought Andrew C. action to recover dam ages for the latter’s death as a result of an automobile col Following lision. the denial of defendant’s motion for verdict, plaintiffs’ directed in returned a verdict favor $2,500. judgment then moved for notwith standing the granted verdict. The trial court this motion, judgment and entered defendant’s favor. On this appeal, plaintiffs challenge ruling. of this correctness in the
Plaintiffs conceded
and
court
now concede
guilty
negligence
that the deceased was
operation
automobile,
of his
own
and that his
contributed
However,
to his death.
the trial court instructed
on
doctrine of last clear chance. Defendant maintains
the evidence was
plaintiffs’
insufficient to sustain
re
covery
theory,
on that
and the trial
properly
in granting
so determined
judgment
his motion for
not
withstanding Viewing
verdict.
light
every
to plaintiffs,
legitimate
most favorable
with
inference
(Neel
Inc.,
drawn in their favor
v. Mannings,
815, 820 Shannon position must 192-193 522]), nevertheless sustained. only The evidence.
There is no material conflict eyewitnesses passenger. Plaintiffs were defendant and his 2055 of the Code of Civil called defendant under section testimony Procedure, they upon their claims base a de- passenger elicited from him. Defendant called substantially witness, testimony corroborated fense that of defendant. Orange 7:20 a. m. County about accident occurred in Street, August of Bolsa 24, 1948, intersection Avenue, West highway,
an east and state and Golden west roadways county running south. Both road north and soft, paved, with approximately 20 and are but wide There are sandy pavement. shoulders on both sides of The view Avenue. ditches on either side Golden West sides, and at from all the intersection is unobstructed visibility slight fog accident, the time of the there travel- Street, which defendant was about feet. Bolsa ap- through. and south ing, highway, is a and at the north *3 regula- proaches are there to it from Golden West Avenue addition, the word signs. (Veh. Code, 471.) tion § the north- “stop” painted across and a white line are feet south bound Avenue a few traffic lane of Golden West white line cross- wavering Bolsa Street. There also is West ing and center line of Golden recrossing the white 300 feet the intersection. approximately Avenue for south of at driving Avenue north on West was Golden Decedent driving west per hour, and defendant was 35 to 40 miles hour. When per approximately miles on Bolsa Street decedent, the automobiles each of defendant first observed Decedent 500 feet from the intersection. approximately stop warnings, and subsequently to heed the continued failed point impact without slacken- the intersection into ing speed. his he watch decedent’s continued to
Defendant testified 75 to 100 feet from defendant was some ear; that when slowing not and saw that decedent was the intersection gently, thinking apply brakes down, he his started approached, stop; decedent probably that as decedent would straight slacken looking ahead and did not appeared to be occurred; any impact before that when speed time his down, applied brakes did not decedent slow intersection, and at a harder at about 75 feet from the on, leaving skid marks distance of 35 feet he slammed them pavement. on the further testified that travel- ing per hour, stopped at miles could have his ear approximately right 60 feet. Defendant did turn or the impact, left before and his car struck decedent’s ear on the side at the rear door and wheel. The collision quadrant occurred in the northeast the intersection. When rest, vehicles came to car near decedent’s a ditch intersection, northwest corner of the some 39 feet from point of impact, and car was some point facing west of said east. parties agreed necessary
The on the elements present must be in order to the application warrant last clear chance doctrine. These elements were stated this court in v. Girdner Union Oil Cal. 915], recently Selinsky and were reiterated in
Olsen,
Cal.2d
and Peterson
Burkhalter,
important to bear in mind that the mere fact that the evi dence in a given case sufficient to sustain a *4 negligence part on the of a defendant justify does not the conclusion that permit such evidence is sufficient to application of the last clear Negligence chance doctrine. is but one of the several elements involved said and reliance on presupposes negligence on part parties. of both In addition, however, there must be substantial evidence to show that defendant had a last clear chance (Dalley avoid the accident. v. Williams, 73 Cal.App.2d 427, 433 595]; P.2d Berton v. 81 Cochran, [166
294 Faris, 88 349]; De v.
Cal.App.2d 776, 779 P.2d Vore [185 391].) 576, 583 P.2d Cal.App.2d [199 deciding that there is suf We assume without finding a some ficient evidence sustain traveling defendant, the fact that he was part despite through assume until the highway and was entitled to obey law contrary would apparent, was that decedent directly sign past drive his car would not (Veh. Code, 552, 577; path into the of defendant’s car. §§ Greyhound Lines, 824, Cal.App.2d Dickinson v. 55 Pacific 401].) 827 P.2d the evidence is insufficient However, [131 de after discovered support that col he avoid the had a last clear chance to peril, cedent’s look that was lision. fact that saw decedent traveling ing straight approxi while was ahead decedent does not mately approaching the intersection danger in a this entire position establish that decedent was danger position until distance. was in a Decedent longer stop point arrived at which he could no (Dalley or v. Wil slow down in time to avoid a collision. 427, also, Young liams, supra, Cal.App.2d 435; v. Southern Pac. 369, P. 36].) 380-381 Cal. [190 possessed that normal to assume decedent warnings were faculties, which that saw (Folger Rich directly range vision. v. within Corp., 660-661 Oil field speeds respective set forth and distances Plaintiffs argue by of mathe testimony, in the and then a series found support matical calculations such evidence is sufficient avoid chance to finding that defendant had a last clear argument merit. this is without accident. our view any testimony is clear that both cars Under view of the it approximately the same approaching the were intersection Disregarding approximately speed. time and at the same traveling on moment the fact that defendant a road through traveling on highway and decedent was ap stop warnings, plainly marked with parent picture case of one presents rapidly types two usual of intersection collisions between the last frequently vehicles. It has been stated such ordinarily inapplicable under clear chance doctrine is Cal.App. (Poncino Co., Reid-Murdock & conditions. v. ; also Johnson Sacramento Northern 932] Dailey Wil- Ry., 503]; Cal.App.2d 528,
295 liams, 427, 436; Folger supra, Cal.App.2d Oil Richfield 660; Corp., supra, 655, Cochran, Berton v. Cal.App.2d 776, 781; supra, Snavely, Allin v. 100 Cal. App.2d 411, 415 in supra,
As was said Poncino v. Reid-Murdock & many page involving at 232: “Like other eases collisions may vehicles, between accident be said to have happened twinkling eye within of an after the first danger. indication of While the doctrine of last clear chance applied exceptional has involving been certain cases col moving vehicles, opinion lisions between we are of ordinary it applied should not be case in which the creating peril practically simultaneously act occurs happening party accident and in which neither fairly can be said to have a last clear had chance thereafter consequences. apply to avoid the To the doctrine to such equivalent denying cases would be the existence of the general contributory rule which makes negligence a bar recovery.” phases plaintiffs’ argument
Certain of should be rely heavily mentioned. upon Plaintiffs defendant’s testi mony to the effect that he stopped could have within a dis tance of 60 traveling feet per while at miles hour. There is no testimony other relating the record to the distance required application car of brakes. As plaintiffs accept testimony, appears therefrom point decedent did danger not reach a of from which he could not extricate himself until he was within 60 feet path car; and that defendant could as sume obey that decedent would stop sign until decedent point had arrived at a within such distance feet. A traveling vehicle speed at a per 40 miles hour travels per approximately 60 second, plaintiffs dispute do not the fact that defendant’s total time for reaction and effective discovering action after perilous decedent’s situation was necessarily somewhere between seconds. Plain 1¼ 1¾ tiffs’ calculations do not position. sustain their As was said Ry. Simpson, St. Louis S.W. Co. v. 346, page U.S. 520, S.Ct. 76 L.Ed. : “Calculations so nice are 1152] unavailing prove anything except unity of the whole transaction. The several negligence acts of closely were too together welded quality time as well in to be viewed as independent.”
In Poncino v. Co., supra, Reid-Murdock & 136 Cal. App. further “In page words, it was said: other enough it is not relieve a his own have a chance to avoid acci- dent, but must have had last chance and also ordinary had a clear the exercise of care. chance to do so implies That should have had last chance that his in point have come later avoid the accident must *6 injured any part the time than similar chance on person. implies had a That he should have clear chance possible than bare chance to avoid he must have had more simultaneously unexpected peril practically an created with negligence injured happening accident party.” in argue negligently acted
Plaintiffs also that defendant collision. We turning not or left to avoid the solely purpose of this dis assumed, have heretofore sustain a cussion, that there was sufficient evidence to indi part of defendant. above of some on the As bring operation into the last cated, suffice to this does not stated, how passing In clear chance doctrine. admittedly traveling on a narrow ever, that defendant was through on either road 20 feet in width with soft shoulders intersecting road approaching he was side; narrow, thereof; and decedent was with ditches on either side sign in and obeying admittedly negligent not diminish path without proceeding directly across defendant’s Plaintiffs fail ing per 40 miles hour. speed of 35 to they should that defendant indicate in which direction believe we circumstances. As attempted under have to turn these rely, it was sufficient plaintiffs view the evidence which peril doctrine imminent application of the to warrant App .2d Devine, 68 Cal. (Peterson v. of defendant favor Brown, 84 Cal. 936]; Wilkerson v. 387, 392-393 P.2d [156 insufficient 958]), but was App.2d 401, 408 P.2d [190 doctrine of the last clear chance application warrant plaintiffs. favor of rely upon decisions, and certain
Plaintiffs cite
addition
mentioned, in which
heretofore
the last clear
to those
chance
(Bonebrake
applied.
McCormick,
v.
doctrine has been
35
728];
Co.,
16
P.2d
Center v. Yellow Cab
Cal.2d
216
[215
Bragg 87
918];
Smith,
Cal.App.2d
P.2d
11
Cal.
[13
Greyhound
;
Lines,
Root v.
P.2d
Cal.
[195
546]
Pacific
;
City
Francisco,
Gillette v.
App.2d
San
48]
[190
611];
Morotti,
Yates v.
434 Cal.App.
Many
pre
these cases have
questions concerning
sufficiency
sented close
of the evidence
application
doctrine,
to warrant
they
but
are all
distinguishable on their
facts.
none of the cited authorities
through highway
was a
nor
involved
was there such a rela
time,
speed
between the
tion
distance and
as
factors
present
language
Bagwill
found in the
case. The
used in
Co.,
Electric R.
The is affirmed. Gibson, J., Shenk, J., Edmonds, C. J., and Traynor, J., concurred. J., Concurring. In my
SCHAUER,
view
appears
there
legally
no substantial and
sound
distinguishing
basis for
case, in favor of a reversal here and an affirmance
from
there,
(1951),
Peterson v. Burkhalter
CARTER, J.I dissent. majority opinion contrary The in this case is to the authori- ties, usurps jury function and makes serious inroads into the last clear chance doctrine. de- inapplicable because
It is held that law, chance to avoid not, did a matter of have a fendant as by acting person prudence. of ordinance the accident as a by ability stop, to which is demonstrated addition to his and averted the to left he could have swerved evidence, traveling that both ears were shows collision. The evidence per hour; 40 miles that defendant saw deceased at about intersection; that when the latter was from the was 75 feet and decedent was from it defendant 30 feet obviously all, looking and did not slow down straight ahead stop that he not at the indicating would to only lightly, applied his brakes sign. Yet The enough stop his car and avoid collision. forcefully to part of the in the northeast intersection occurred accident door. at the rear wheel and car was struck left and decedent’s on the highway feet wide. No other cars were was The effort to swerve the left highway. made no Thus, he have done. plainly could the collision which avert by ample avoid the collision either opportunity he say swerving. It whether stopping or ordinary he followed one course prudence should have man of or the other. weighs the and concludes majority opinion as, such statements no last clear there was
that assume decedent would entitled defendant was that justified jury in con- stop sign (the circumstances at the assumption) and cluding if he made such was remiss peril entitled to the imminent rule defendant was (whether peril was such acted swerving there respect to jury). ordinary prudence was an issue for as a man majority, rule, as asserted It is not the moving vehicles apply where two does not clear chance rule contrary authori- reached is involved; the conclusion in this state. ties Selinsky Olsen, 102, 105, 38 Cal.2d said in We “It for the determine whether
P.2d 645]:
have avoided the collision.”
he could
space of time involved
*8
728],
P.2d
McCormick,
Cal.2d
Bonebrake
[215
In
instruct
trial
refusal to
court
court reversed
involved,
moving
dece-
were
two
vehicles
where
following him and
a car
bicycle
on a
dent
path
in the
of the car.
the left
turned to
decedent
977],
Burkhalter,
“Burkhalter saw Peterson when feet from the inter- section. He estimated could his automobile within 10 or 15 feet. He did within 28 to 30 feet after the impact, and testified could have done so sooner. All of might the evidence that Burkhalter indicates have halted his automobile at much less distance than 50 feet.
“Moreover,
testimony
Burkhalter’s
reveals that he made
attempt
no
turning
avoid the accident
his automobile
or sounding
said,
law,
his horn. It cannot be
as a matter of
that he did not
something,
have
time in which to do
sufficient
and the
properly might
sounding
have found that
his
horn to
attract
attention
Peterson would have con-
stituted
part
the exercise of
on his
reasonable care
to avert
(Italics
the accident.”
added.)
indistinguishable
That case is
from the one at bar.
In
Co.,
Center v. Yellow Cab
918],
plaintiff,
pedestrian,
across the street not at a
crosswalk and
driving
defendant was
on the street
when
ear struck plaintiff. Plaintiff
observing
approach. It was held
clear chance
avoid the
swerving, blowing
accident
stopping.
horn or
Girdner v. Union Oil
Chappell
Diego
Co.,
to two approaching vehicles an intersection the ma jority cites Poncino v. Reid-Murdock & Cal.App. 136 223 932], P.2d No authority citation of is made [28 for that statement in the hearing Poncino case. A in this court was by denied. As pointed Burkhalter, out this court Peterson v. supra, 38 Cal.2d upon that ease was based proposi tion that danger was aware of the rather than that defendant did opportunity not have an it; to avoid that was only basis for distinguishing it from Girdner v. Union Co., supra, Oil 216 Cal. and otherwise the case was in effect being overruled as out of line with the case. Girdner
Johnson v. Sacramento
Ry.,
Northern
There no reason it should such a considering speed situation with which automobiles operated rapid necessity and the now reaction avoid person (defendant) approaching Here we have a accidents. per an intersection at miles hour. He sees another car and the approaching speed at the same crossroad driver (decedent) does not observe him. When other car stop sign 50 feet from the car was at least assuming sign. longer justified stop it would no suppose other It is not reasonable that the driver of the point apply at that his brakes with full car would force stop. shrieking to a when other car come Hence was at adequate point opportunity the defendant path to ear or swerve from its avert the collision. Appeal Bragg What said the District Court Cal.App.2d 11, page Smith, actually The defendant discovered situa pertinent here:" danger possible still realized the while was tion and *11 ordinary by part. care the use of the collision avoid clearly open to him to avoid the accident opportunity was The turning or to his left. While it by either to his quickly, is not unusual for a he had to act it true that be necessity it with a and cannot to confronted such motorist be approximately law, of that a distance of said, as a matter be him to chance to enable have a clear not sufficient 100 feet was experience vehicle. slightly the course of his Common alter to support evidence here is sufficient contrary, and the the acci last to avoid the a clear chance court’s that the actually knew that the defendant after the dent existed danger from of which would position in a was by any which he could then take. escape action be unable ” 45].) Cal.App. 218 P. (Cady Sanford, a trial denied the court be remembered that It should directed verdict and a on behalf of motion instructions jury appropriate under case to the submitted the jury the returned and the last clear applying implied it must be plaintiffs from which in verdict favor a last they as a fact determined the perceiving clear chance to avoid collision after that de- peril. The position granted cedent was trial court then judgment notwithstanding motion for verdict. the appeal judgment Plaintiffs took an from the and the District Appeal, by Court of Appellate District, Fourth unanimous opinion by prepared Mr. Mussell Justice and concurred in Presiding Mr. Justice Barnard and Mr. Justice Griffin judgment reversed and remanded the ease the trial judgment conformity court with instructions to enter jury. ((Cal.App.) 25.) verdict The opinion Appeal of the District Court of contains correct facts, supported by statement well reasoned and is authority. following abundant The statement is contained concluding paragraph opinion: of the “We conclude that there support findings substantial evidence to was jury rendering and that the trial erred in judgment notwithstanding the verdict.” foregoing clearly
From the it appears judge that the trial opinion that the last clear chance doctrine was applicable when he jury submitted the case to the and that necessary found the support facts a verdict plaintiffs. favor of Although judge changed mind after returned, the verdict was unanimous opinion of the Appeal District Court the evidence warranted the submission of the case and that question of whether or not the defendant had a clear chance to avoid the collision was one of fact not of law, and reversed the trial court. very Pfingsten recent case of Westenhaver, ante,
p. 12, page reannounced the well settled rule that may reasonably “Where different conclusions be from drawn the evidence different minds the trial court’s (jury’s) findings appeal.” disturbed on (See, also, Connor v. Owen, 591, 592-593 fairly honestly
I do not it can believe be said that in this presents record ease a factual situation happened reasonable minds cannot differ. has What thus *12 beyond far question that reasonable minds have demonstrates arrived different conclusions the record before us. Such being case, under the is well-settled issue one of law, fact and and hence should be determined jury the trier of fact—the this case. great majority opinion
While the in this case will create confusion because clear conflict with numerous other Appeal decisions of court and the District Courts of graver hereinabove, which I have cited and more far-reach- ing problem of the concern is the that it is in direct violation by jury provision constitutional “the of trial shall (Cal. inviolate”; Const., I, art all, be secured and remain §7). a It be doubted factual situation cannot that where jury presented litigants in which are entitled to case the case from right, trial as a and the court takes matter is no law there and decides as matter of isgue deprived litigants fact have been determined, to be Such violated. trial, of a and the Constitution been has may seem result is the situation the ease at bar. While this impact an insidious unimportant case, to be in this it has judges If who have on our whole constitutional structure. ruth- support the Constitution can taken a solemn oath to has majority here, done disregard provisions, as the lessly its holding positions of loyalty from those why oaths demand importance lesser ? judgment and direct the
I would reverse the jury. of the judgment on verdict enter August rehearing denied Appellants’ petition petition opinion that Carter, J., was 7, 1952. granted. should