Opinion
This cause of action arose out of an automobile-pedestrian collision on East Anaheim Street in the Wilmington area. Plaintiff appeals from judgment in defendant’s favor entered on a jury verdict. The sоle issue before us involves the trial court’s refusal to give plaintiff’s requested instruction on last clear chance (BATI No. 4.20).
The actual impact was witnessed by Henry Cantrell and Mrs. Francie Wasowski, both of whom were called by plaintiff. Mr. Cantrell was driving west on Anaheim near its intersection with Banning; upon reaching Banning and proceeding through the green signal, he first observed plaintiff (who was then about 200 feet ahead) entering the westbound lane of Anaheim from the traffic side of the curb lane. According to Cantrell, who slowed down almost to a stop to let him pass, plaintiff was dressed in dark clothing and walking “hurriedly” across the street; when Cantrell first saw defendant’s car, after his initial observation of plaintiff, it was about three blocks away in the eastbound lane next to the center line and traveling at a sрeed of 50-60 miles per hour; he continued to watch defendant’s car as it continued eastward toward the scene of the impending accident at the same speed (50-60 miles per hour); it commencеd to slow down when it reached a point about three car lengths from plaintiff and, after changing lanes, struck him when he was about three feet (a car’s width) from the cars parked in the curb lane. Cantrell testifiеd that at the moment of impact the speed of defendant’s vehicle was about 40 miles per hour, and plaintiff was thrown about 30-40 feet. At no time during the foregoing series of events was defendant’s vision obstructed by other cars, either on his right or left.
Mrs. Francie Wasowski was also eastbound on Anaheim under light traffic conditions—about 250 feet behind defendant; at that distance she too observed the plaintiff who was then about 10 tо 15 feet from defendant’s car and moving at a fast walk or a trot; plaintiff was wearing a white shirt, dark pants and dark shoes; she did not see him stop or look instead, he maintained the same gait until he was hit by defendant’s car. All the observations were made within a period of seconds; Mrs. Wasowski was unable to state with certainty which lane of traffic either she or the defendant was using.
Called as an adverse witness (Evid. Code, § 776), defendant testifiеd that the accident occurred after dark at about 8 p.m. He had driven that particular portion of Anaheim several times in the past and was familiar with the area; on the night in question, he entered Anaheim more than a mile from the point of impact. His testimony having been given at a previous deposition, he corrected such testimony in two respects: he did not see the plaintiff until immediately prior to the impact when he immediately applied his brakes (in his deposition he said he never saw the pedestrian); as he traveled through the block before the one where the accident occurred, he saw other vehicles on the street (in his deposition he said there were no other such vehicles). Commencing about one block from the point of impact, defendant further testified he never took his eyes off the road; however, he had “no idea” how far he was from plaintiff when he first saw him.
Officer Rodgers testified to the contents of the police report which he prepared; according therеto the accident occurred 200 feet west of the west curb of Banning and 10 feet north of the south curb of Anaheim; street lighting was good at that point and for several blocks on Anaheim both east and west; defendant, who was interviewed by Rodgers, stated that he was going about 35-40 miles per hour; defendant’s car left about 30 feet of “brush” (broken or intermittent) skid marks prior to the point of impact with plaintiff.
A requested jury instruction on last clear chance must be given if there is evidence of each of the following elements: (1) plaintiff negligently placed himself in a position of danger; and (2) defendant had actual or constructive knowledge that plaintiff could not escape from such a situation and (3) after that time had a last clear chance to avoid the accident. (Brandelius v. City & County of S. F.,
The cases have amplified the first of the three elements or factors, supra, by noting that plaintiff’s “position of danger” must be one from which hе cannot escape by the exercise of ordinary care either because of some physical impossibility or plaintiff’s unawareness of his danger. (Brandelius v. City & County of S. F., supra, p. 740.) The record supports the inference that plaintiff was at least totally unaware of the approach of defendant’s car; and had he been aware of defendant’s car, it posed a danger from which, at his age, he could not have escaped even by the use of ordinary care. According to Mr. Cantrell, plaintiff was attempting to cross the street against the flow of traffic some 200 feet from the nearest available crоsswalk; according to Mrs. Wasowski, he neither stopped nor looked as he proceeded across the street. Defendant, however, contends that no proof was adduced to indicate thаt plaintiff was “totally unaware” of the impending danger; plaintiff did not testify and, according to defendant, a favorable finding based on the testimony of plaintiff’s witnesses (above summarized) would be sheer conjeсture. We disagree. In our view it is enough if the circumstances were such as to persuade a reasonable person (by the drawing of a necessary inference) that plaintiff was totally unaware of his dangerous predicament.
An inference properly drawn from circumstantial evidence will likewise support a finding relative to the second element, namely, defendant’s knowledge of plaintiff’s perilоus situation. “Evidence that the defendant could plainly have seen the peril if he had looked is sufficient to support the necessary inference of knowledge. [Citations.]” (Forwood v. Sutton,
This brings us to the third element—the last clear chance to avoid the accident. If the jury were to infer, as they properly could have done, that plaintiff’s jaywalking was observеd by defendant at the distances testified to by Cantrell and Wasowski, he had several seconds within which to react to the impending danger. Instead of maintaining his course in the lane next to the dividing line, he swerved his car (аccording to Mr. Cantrell) into the lane being traversed by plaintiff—next to the parking lane. Had he remained in the lane next to the dividing line, no accident would have resulted. The instant case, contrary to defеndant’s assertion, is not apposite to Kaake v. Lott,
Finally, it cannot be said that the erroneous refusal to give the instruction can be cured by applying the provisions of article VI, section 13, California Constitution. After some deliberations, the jury asked to be instructed again on negligence and contributory negligence; having been so instructed (without the benefit of the instruction on last clear chance), they soon thereafter returned a defense verdict by a 9-3 vote.
The judgment is reversed.
Wood, P. J., and Thompson, J., concurred.
Respondent’s petition for a hearing by the Supreme Court was denied October 10, 1973.