Clarida v. Aguirre

• Decision Date: 16 December 1957
• Court: California Court of Appeals Court of Appeals
• Parties: Louis Mason CLARIDA, Plaintiff, Cross-Defendant and Appellant, v. John AGUIRRE, Defendant, Cross-Complainant and Respondent. Robert Patrick MULREY, Plaintiff, Cross-Defendant and Appellant, v. John AGUIRRE, Defendant, Cross-Complainant and Respondent. Civ. 17450.

Page 20

319 P.2d 20

156 Cal.App.2d 112

Louis Mason CLARIDA, Plaintiff, Cross-Defendant and Appellant, v. John AGUIRRE, Defendant, Cross-Complainant and Respondent.

Robert Patrick MULREY, Plaintiff, Cross-Defendant and Appellant, v. John AGUIRRE, Defendant, Cross-Complainant and Respondent.

Civ. 17450.

District Court of Appeal, First District, Division 1, California.

Dec. 16, 1957.

Hearing Denied Feb. 11, 1958.

Garry, Dreyfus, McTernan & Keller, San Francisco, for appellants.

Ropers & Majeski, Redwood City, for respondent.

BRAY, Justice.

Plaintiff Clarida and plaintiff Mulrey filed separate complaints against defendant Aguirre alleging negligence in the operation of defendant's automobile causing injuries to plaintiffs. Defendant answered each complaint denying negligence and alleging contributory negligence. Defendant also filed cross-complaints for damages for personal injuries arising out of the negligence of both plaintiffs in the same accident. The two cases were consolidated for trial. A jury found in favor of defendant on both complaints and for both plaintiffs on defendant's cross-complaints. Plaintiffs appeal from the judgment in favor of defendant on plaintiffs' complaints. Question Presented.

The court's refusal to instruct on last clear chance.

Evidence.

All of the parties and one Marks attended a union Christmas party at Forester's Hall in Redwood City. Having done more or less drinking at the party, the group, with others, adjourned to a Redwood City bar, and then to defendant's home, at each place continuing the festivities. Leaving defendant's home, Mulrey and Clarida were in Clarida's car, Mulrey driving, as Clarida was sick from drinking. Defendant drove his own car with Marks as passenger. (There is an immaterial conflict in the testimony as to where the parties were going.) Traveling different routes the two cars arrived at the Bayshore Highway. As plaintiffs were driving down the highway they saw defendant's car waiting at an intersection to enter. They were not aware of its presence thereafter. They only remembered driving in the outside or slow lane until the accident. Clarida could not even say that it was defendant's car which was involved. Of the accident he could only remember a 'slight crash.' Mulrey could only remember 'a scraping sound.' Defendant after seeing Clarida's car pass by the intersection, entered the highway. He turned in its direction. Later he became conscious of Clarida's car and noticed that it was weaving in and out of its lane--about 6 inches into the passing lane and 6 inches on to the shoulder. Plaintiffs were not aware that their car was weaving. Defendant being of the opinion that both plaintiffs were 'pretty drunk' when they left his home, concluded that he should warn them of their weaving. He waited until it appeared to him that they were driving straight and then proceeded to the passing lane to pass them and to signal them to leave the highway. He was about two car lengths behind plaintiffs' car when he proceeded to pass. As he was passing, the two cars sideswiped each other, causing the accident. Marks, defendant's passenger, remembered nothing concerning how the accident occurred.

Last Clear Chance.

Plaintiffs' contention that an instruction on the doctrine should have been given is based upon their assertion that defendant, observing that plaintiffs' car was weaving (plaintiff 'would probably go for a distance of a couple of car lengths straight, and then he would start to weave again') could have avoided the accident by not attempting to pass it. Plaintiffs thereby confuse the question of negligence of defendant in so doing with the question of the application of the doctrine. The formula for its application is well stated in Brandelius v. City and County of San Francisco, 47 Cal.2d 729, 743, 306 P.2d 432, 440: 'The formula may be restated as follows: The doctrine of last clear chance may be invoked if, and only if, the trier of the facts finds from the evidence: (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.' We agree with the trial judge who stated in denial of the motion for new trial: '* * * most, if not all, of the factors essential to application of the last clear chance doctrine are lacking in this case. If but one element is lacking, instruction upon the doctrine is improper.' See Doran v. City and County of San Francisco, 44 Cal.2d 477, 483, 283 P.2d 1. It is true that had defendant not attempted to pass plaintiffs' car the accident would not have happened, at least in the form that it did. But that fact alone is not sufficient to bring last clear chance into play. When defendant moved into the passing...