Daniels v. City and County of San Francisco
Decision Date | 09 April 1953 |
Citation | 255 P.2d 785,40 Cal.2d 614 |
Parties | DANIELS et al. v. CITY AND COUNTY OF SAN FRANCISCO et al. S. F. 18701 |
Court | California Supreme Court |
Tobriner & Lazarus and Leland J. Lazarus, San Francisco, for appellants.
Dion R. Holm, City Attorney and George E. Baglin, Deputy City Attorney, San Francisco, for respondents.
Plaintiffs sought to recover for personal injuries and property damage sustained as the result of an intersection collision between an automobile driven by plaintiff Laura E. Daniels and a municipal bus operated by defendant Myron Urdahl. The verdict was for defendants. From the judgment thereupon entered and an order denying their motion for a new trial, plaintiffs have appealed. As the latter order is nonappealable, Code Civ.Proc., § 963; 20 Cal.Jur. 213, the appeal therefrom must be dismissed.
The jury was given the customary instructions on the issues of negligence and contributory negligence. However, the court refused to instruct on the doctrine of last clear chance. The propriety of such refusal is the principal point in dispute. The form of the proposed instruction is not in question. BAJI 205, p. 310; Root v. Pacific Greyhound Lines, 84 Cal.App.2d 135, 137, 190 P.2d 48; Alberding v. Pritchard, 97 Cal.App.2d 443, 444-445, 217 P.2d 1012. Viewing the evidence in the light most favorable to the application of the doctrine and indulging every reasonable inference in support thereof, Bonebrake v. McCormick, 35 Cal.2d 16, 19, 215 P.2d 728; Selinsky v. Olsen, 38 Cal.2d 102, 103, 237 P.2d 645; Hopkins v. Carter, 109 Cal.App.2d 912, 913, 241 P.2d 1063, we have concluded that plaintiffs were entitled to the requested instruction.
The accident occurred on March 5, 1949, about 5:30 p. m. at the intersection of Alemany Boulevard and Congdon Street in San Francisco. Alemany Boulevard, a six-lane signposted 'through highway' Veh. Code, §§ 82.5, 552, 577, runs in a general easterly-westerly direction. It is quite winding, and long concrete 'islands' divide the boulevard into two three-lane roadways for opposite travel. Each roadway is 38 feet wide, with the outer lane 17 feet 6 inches wide, the middle lane 10 feet wide, and the inner lane 10 feet 6 inches wide. Congdon Street runs north-south and slopes a little downhill as it ends at the boulevard. Mrs. Daniels wa driving her automobile in a northerly direction along Congdon Street and approaching the boulevard intersection, which was protected by an arterial stop sign. She intended to cross the boulevard's eastbound lanes and turn to her left onto the westbound roadway. The view of eastbound boulevard traffic approaching from her left was partially obscured by a large billboard on the southwest corner of the intersection and the curving line of the boulevard. At that time defendants' gasoline-propelled bus was traveling easterly in the boulevard's middle lane, having just made a stop at the Mission Street viaduct, which crosses the boulevard 750 feet west of Congdon Street. The driver, defendant Urdahl, then had a fleeting view of plaintiffs' automobile as it proceeded down Congdon Street and passed an opening between the corner billboard and the last house on the street.
Meanwhile Mrs. Daniels drove slowly into the boulevard's eastbound roadway and when defendant Urdahl next saw it, it had stopped momentarily in the middle lane some 180 to 200 feet in front of the bus. At that point Mrs. Daniels testified that she first saw the approaching bus, which she estimated to be traveling at a speed between 50 and 60 miles per hour. The bus driver testified to this sequence of events as he saw plaintiffs' automobile ahead on the boulevard: that he was then proceeding at the rate of 35 miles per hour; that he immediately applied his brakes for about 30 or 40 feet, slackening his speed to 15 or 20 miles an hour; that he then released the brakes, accelerated the bus and steered toward the inside lane in an effort to pass in front of plaintiffs' automobile; and that finally, when a collision seemed inevitable, he again applied his brakes. Mrs. Daniels testified that upon seeing the bus to the left bearing down on her as she was driving about 5 miles on hour, she accelerated her speed in an attempt to complete her crossing of the boulevard's eastbound roadway and avert a collision. However, the left front of the bus struck the left rear of her automobile just forward of its rear bumper, and spun it around so that it came to rest in the boulevard's three-lane roadway for westbound traffic. The last braking of the bus left 72 feet of skidmarks to the point of collision, and there were 24 feet of 'brush' marks made by the tires of plaintiffs' automobile while it was being pushed along the pavement. Mrs. Daniels was thrown from her automobile by the impact and injured. Mrs. Smith, who was riding beside her, was less seriously hurt.
Whether or not the doctrine of last clear chance applies in a particular case depends entirely upon the existence or nonexistence of the elements necessary to bring it into play. Such question is controlled by factual circumstances and must ordinarily be resolved by the fact-finder. Girdner v. Union Oil Co., 216 Cal. 197, 199, 13 P.2d 915; Hopkins v. Carter, supra, 109 Cal.App.2d 912, 915, 241 P.2d 1063. An instruction stating the doctrine is proper when there is evidence showing: '(1) That plaintiff has been engligent and, as a result thereof, is in a position of danger from which he cannot escape by the exercise of ordinary care; and this includes not only where it is physically impossible for him to escape, but also in cases where he is totally unaware of his danger and for that reason unable to escape; (2) that defendant has knowledge that the plaintiff is in such a situation, and knows, or in the exercise of ordinary care should know, that plaintiff cannot escape from such situation, and (3) has the last clear chance to avoid the accident by exercising ordinary care, and fails to exercise the same, and the accident results thereby, and plaintiff is injured as the proximate result of such failure.' Girdner v. Union Oil Co., supra, 216 Cal. at page 202, 13 P.2d at page 917; also Selinsky v. Olsen, supra, 38 Cal.2d 102, 104, 237 P.2d 645; Peterson v. Burkhalter, 38 Cal.2d 107, 109-110, 237 P.2d 977.
The first element is not lacking under the evidence that plaintiff Laura Daniels by reason of her own negligence found herself in a position of danger from which she could not escape by the exercise of ordinary care. While there is a conflict as to whether plaintiffs' automobile stopped at the arterial stop sign before entering the boulevard, the defense witnesses agreed that Mrs. Daniels did not make the required stop, but merely 'slowed down' her automobile as she approached the intersection, and that she came to a complete stop only as she was crossing the boulevard's middle lane for eastbound traffic. At that point she first became aware of defendants' bus as it was traveling toward her in the center eastbound lane, and it was then that she accelerated her automobile in an effort to escape from its path.
Nor is the evidence lacking in support of the second element, upon defendants' claim that there is no showing that Urdahl, the bus driver, was aware of Mrs. Daniels' perilous situation or knew that she could not escape therefrom. Urdahl testified that he first saw plaintiffs' automobile in the brief interval when it passed between the corner billboard and the last house on Congdon Street, and next when it proceeded into the boulevard. He kept his eyes on it and saw it 'slowing up' until it came to a complete stop directly in his path in the boulevard's center lane. He could not then know what was the cause for the retardation of plaintiffs' automobile as it rolled slowly into his lane of travel, and whether or not such procedure was sufficient to alert a reasonable man was a factual consideration for the jury. As stated in Cady v. Sanford, 57 Cal.App. 218, 226, 207 P. 45, 48: Peterson v. Burkhalter, supra, 38 Cal.2d 107, 111, 237 P.2d 977; see, also, Jones v. Yuma Motor F. Terminal Co., 45 Cal.App.2d 497, 501-502, 114 P.2d 438; Alberding v. Pritchard, supra, 97 Cal.App.2d 443, 445, 217 P.2d 1012.
Defendants argue that plaintiffs' automobile was not in a 'position of danger' until it 'jumped forward' from a standing position in the middle lane into the path of the bus as Urdahl veered to the inside lane in an attempt to avoid a collision. But such argument makes no allowance for Urdahl's admitted awareness of plaintiffs' automobile before it even stopped and while he saw it reducing its speed as it came into his path. From this aspect of the evidence it becomes unnecessary to consider decisions upon which defendants rely to the effect that the last clear chance doctrine cannot apply until a position from which the plaintiff cannot escape danger has been reached. Young v. Southern Pacific Co., 189 Cal. 746, 753, 210 P. 259; Rodabaugh v. Tekus, 39 Cal.2d 290, 246 P.2d 663. It would be a disregard of the realities of the situation to hold that under no view of the record could it be said that Urdahl's observation of the slackening speed of plaintiffs' automobile until it finally came to rest in his lane of travel on the 55-mile per hour highway might not reasonably constitute sufficient warning of the imminently perilous position created in front of him. Such consideration distinguishes cases where there was no evidence that would sustain a finding of knowledge by defendant of the plaintiff's danger. Johnson v. Southwestern Eng. Co., 41 Cal.App.2d 623,...
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