Connolly v. Pre-Mixed Concrete Co.

• Decision Date: 17 December 1957
• Docket Number: PRE-MIXED
• Citation: 49 Cal.2d 483,319 P.2d 343
• Court: California Supreme Court
• Parties: Maureen CONNOLLY, Plaintiff and Respondent, v.CONCRETE COMPANY (a Corporation) et al., Defendants and Appellants. L. A. 24705.

Page 343

319 P.2d 343

49 Cal.2d 483

Maureen CONNOLLY, Plaintiff and Respondent, v. PRE-MIXED CONCRETE COMPANY (a Corporation) et al., Defendants and Appellants.

L. A. 24705.

Supreme Court of California.

Dec. 17, 1957.

Rehearing Denied Jan. 15, 1958.

Luce, Forward, Kunzel & Scripps, Edgar A. Luce and Leland C. Nielsen, San Diego, for appellants.

Melvin M. Belli, San Francisco, John D. Butler and Butler, Kaminar & Sorbo, San Diego, for respondent.

GIBSON, Chief Justice.

Plaintiff was injured when her horse became frightened by a cement mixer truck owned by defendant corporation and operated by its employee, defendant Stevens. The case was tried before a jury which returned a verdict in favor of plaintiff in the amount of $95,000. Defendants have appealed, contending that the trial court erred in giving an instruction on the doctrine of last clear chance and that the damages awarded are excessive.

Stevens made a left turn from Colusa Road onto Friars Road, a two-lane highway about 18 feet wide with dirt shoulders four feet wide on each side. He was then traveling at a speed of approximately 15 miles an hour, and he could easily have stopped within 20 feet. The exhaust pipe of the truck was worn through, and the cement mixer, which was operated by a separate motor, was revolving. There was a great deal of noise from the two motors and the faulty exhaust pipe, and there was some cement in the mixer which added to the noise. Plaintiff and two other girls were riding on horseback along Friars Road toward Colusa Road, which was between 250 and 350 feet away. Plaintiff was in the lead, and she and one companion were on one shoulder of the road, and the third rider was on the other shoulder. When the truck turned into Friars Road, the horses became frightened by the noise, and the riders shouted and waived at Stevens to stop. Stevens saw the riders when he 'straightened out' after making the turn, and he noticed that the horses were 'mincing and moving around across back and forth around the road' and that the riders were waving. Although he could not hear what they were saying because of the noise from the truck, he thought that they wanted him to slow down or stop. He realized there was 'a little danger there' and he thought that 'the best thing * * * was to proceed beyond where the horses were and get the noise away * * *.' He continued down the middle of the road at a reduced speed, and as the truck came closer the horses became 'practically frantic' with fright. They were 'dancing, prancing around, moving in and out of the road, off on the shoulder, back and forth, and in general just milling around.' Stevens was watching the girl on his right because he feared that her horse might go over a bank on that side of the road, and, as he came abreast of plaintiff, who was on his left, he swerved onto her side of the road. Her horse whirled, her right leg was 'caught' by the left rear mudguard of the truck and she was thrown to the ground. Her leg was severely lacerated below the knee, the muscle was torn loose and the bone was visible. Plaintiff was taken by an ambulance to a hospital where she was in surgery for about three hours. She remained in the hospital for ten days, and her leg was in a cast for several weeks afterward.

Section 532 of the Vehicle Code provides that the driver of any vehicle approaching a ridden animal shall reduce speed or stop as may appear necessary or as may be requested in order to insure the safety of the rider. ¹

In Brandelius v. City and County of San Francisco, 47 Cal.2d 729, 743, 306 P.2d 432, 440, the last clear chance formula was restated as follows: 'The doctrine of last clear chance may be invoked if, and only if, the trier of 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.'

On the issue of plaintiff's negligence there was testimony that she knew that her horse occasionally whirled around when excited and that, a few minutes before the accident, her horse became frightened and whirled when a large crane passed along the road. There was also evidence that plaintiff could have avoided the traffic on the road by taking an alternative route over a bridle path which she had previously used. Defendants, relying on this evidence, contended at the trial that their pleaded defense of contributory negligence had been established, and the court instructed the jury on that issue. In view of the record defendants cannot, and they do not, attack the last clear chance instruction on the ground that there was no evidence of plaintiff's negligence.

Instead, it is defendant's position that the doctrine of last clear chance is inapplicable because, they urge, plaintiff could have removed herself from danger by dismounting at any time until an instant before the accident occurred, at which instant Stevens had no chance to avoid it. They argue that plaintiff...