Bonebrake v. McCormick

• Decision Date: 17 March 1950
• Citation: 35 Cal.2d 16,215 P.2d 728
• Court: California Supreme Court
• Parties: BONEBRAKE et ux. v. McCORMICK. Sac. 6023.

Page 728

215 P.2d 728

35 Cal.2d 16

BONEBRAKE et ux. v. McCORMICK.

Sac. 6023.

Supreme Court of California, in Bank.

March 17, 1950.

Willens & Boscoe, Stockton, for appellants.

Honey & Mayall, Stockton, for respondent.

GIBSON, Chief Justice.

Plaintiffs appeal from an adverse judgment in a suit for the wrongful death of their fourteen year old son who was struck by defendant's car while riding his bicycle. The principal question presented is whether the trial court erred in refusing to give a requested instruction on the doctrine of last clear chance. This depends on whether there was evidence which would reasonably support a recovery on that theory. See Raymond v. Hill, 168 Cal. 473, 479, 143 P. 743.

Mrs. McCormick, the defendant, was driving east on the south side of a straight, dry, two-lane highway at forty-five or fifty miles per hour, and the boy was traveling in the same direction on the same side of the road. The paved portion of the highway was twenty-four feet wide, and there were dirt shoulders about eight feet in width on each side. Defendant testified that the boy was about 450 feet ahead of her when she first saw him. At that time there were no cars in front of her on the right side of the road, and the closest car coming from the opposite direction was a mile or a mile and a half away. The boy was then riding his bicycle on the shoulder near the edge of the pavement. Defendant testified that she sounded her horn when she was approximately 150 feet from the boy, and that he continued to ride ahead without turning until she drew even with him when he suddenly veered to the left into the path of her car.

There were three disconnected sections of skid marks variously estimated as commencing from 200 to about 300 feet before the point of impact. The first set of skid marks was straight and was followed by a gap of fifteen or twenty feet; the second set angled slightly to the left and was followed by a gap of thirty to thirty-five feet; the third set angled farther to the left and continued past the point of impact to where defendant's car came to a stop on the north side of the highway. The third set of skid marks began approximately 100 feet before the point of impact and was described by a highway patrol officer as being the 'heaviest and blackest that I have ever seen.' The accident occurred approximately two feet south of the center line of the highway.

The patrol officer testified that, immediately after the accident, defendant told him the boy looked back and turned to the left when she sounded her horn. According to her testimony, as we have seen, she sounded her horn when she was 150 feet away from the boy.

It is argued that the statement to the patrol officer was admissible solely for the purpose of impeachment, and that it could not be used in determining whether there was evidence upon which the refused instruction could be based. This argument, however, fails to take into...