Barcelone v. Melani

• Decision Date: 10 January 1958
• Citation: 320 P.2d 203,156 Cal.App.2d 631
• Court: California Court of Appeals Court of Appeals
• Parties: Josephine BARCELONE, Plaintiff and Appellant, v. Morris A. MELANI and A. J. Melani, Defendants and Respondents. Civ. 17532.

Page 203

320 P.2d 203

156 Cal.App.2d 631

Josephine BARCELONE, Plaintiff and Appellant, v. Morris A. MELANI and A. J. Melani, Defendants and Respondents.

Civ. 17532.

District Court of Appeal, First District, Division 2, California.

Jan. 10, 1958.

Rehearing Denied Feb. 7, 1958.

Hearing Denied March 6, 1958.

Johnson, Thorne, Speed & Bamford, San Jose, for appellant.

Campbell, Custer, Warburton & Britton, Alfred B. Britton, Jr., San Jose, W. R. Dunn, Burlingame, of counsel, for respondents.

DRAPER, Justice.

This is an action for wrongful death. Jury verdict was for defendants, and plaintiff appeals from the judgment entered thereon. The sole error urged is the court's refusal of plaintiff's requested instruction on the doctrine of last clear chance.

Respondents point out that the form of the instruction requested (B.A.J.I. 205) has been disapproved (Brandelius v. City & County of San Francisco, 47 Cal.2d 729, 306 P.2d 432). They rely upon the rule that the trial court is not bound to give an offered instruction which is erroneous in form. However, the Brandelius decision was rendered 6 months after trial of this case. Until that decision, the form used by appellant had at least the tacit approval of the appellate courts. Appellant should not be deprived of the right to trial upon the issue of last clear chance because of the later determination that her offered instruction was erroneous (Parrott v. Furesz, 153 Cal.App.2d 26, 314 P.2d 47). Thus the question before us is whether the evidence required a proper instruction upon this subject.

The doctrine of last clear chance is properly invoked only if the evidence warrants findings: '(1) that the plaintiff was in a position of danger and, by his own negligence, became unable to escape from such position by the use of ordinary care, either because it became physically impossible for him to escape or because he was totally unaware of the danger; (2) that defendant knew that plaintiff was in a position of danger and further knew, or in the exercise of ordinary care should have known, that plaintiff was unable to escape therefrom; and (3) that thereafter defendant had the last clear chance to avoid the accident by the exercise of ordinary care but failed to exercise such last clear chance, and the accident occurred as a proximate result of such failure.' Brandelius v. City & County of San Francisco, supra, 47 Cal.2d 729, 743, 306 P.2d 432, 440. The same opinion points out that 'the time when defendant is chargeable with actual knowledge of the injured person's position of danger may substantially precede the time when defendant is chargeable with actual or constructive knowledge of the injured person's inability to escape therefrom; but defendant is not liable under the doctrine unless after the time that he is chargeable with the required knowledge of the injured person's inability to escape, he 'has the last clear chance to avoid the accident by exercising ordinary care.'' 47 Cal.2d at page 741, 306 P.2d at page 439.

The collision here in question occurred on the San Jose-Los Gatos highway, which is a four-lane roadway with a broad dividing strip separating the two eastbound lanes from the two for westbound traffic. Decedent had been driving west, and turned left through the dividing strip at an intersection. The evidence is in conflict as to whether he stopped or merely slowed at the arterial stop sign at the south side of the divider strip. Respondent driver, eastbound, saw decedent in the neighborhood of the stop sign from a distance of 350 to 500 feet. Decedent's car continued into the...