Di Sandro v. Griffith

• Decision Date: 24 January 1961
• Citation: 188 Cal.App.2d 428,10 Cal.Rptr. 595
• Court: California Court of Appeals Court of Appeals
• Parties: Antoinette DI SANDRO and Peter Di Sandro, Plaintiffs and Appellants, v. Jay Edward GRIFFITH et al., Defendants and Respondents. Civ. 6328.

Page 595

10 Cal.Rptr. 595

188 Cal.App.2d 428

Antoinette DI SANDRO and Peter Di Sandro, Plaintiffs and Appellants, v. Jay Edward GRIFFITH et al., Defendants and Respondents.

Civ. 6328.

District Court of Appeal, Fourth District, California.

Jan. 24, 1961.

Beloud & Hayton and Charles S. Althouse, Upland, for appellants.

Jarrett & Morgan and Albert J. Holzhauer, Los Angeles, for respondents.

COUGHLIN, Justice.

The question presented by this appeal is whether the evidence in a personal injury action, involving an intersection automobile accident, required the giving of an instruction on the last clear chance doctrine. Appellants, the plaintiffs in the action, proposed such an instruction which the trial court refused to give, and this refusal is assigned as prejudicial error in their appeal from the judgment entered upon the verdict in favor of the respondent, the defendant in the action.

Granted the existence of substantial evidence, conflicting or otherwise, in support of each of the elements essential to an application of the doctrine of last clear chance a refusal to give a requested instruction thereon is error. Doran v. City and County of San Francisco, 44 Cal.id 477, 487, 283 P.2d 1; Daniels v. City & County of San Francisco, 40 Cal.2d 614, 623, 255 P.2d 785; Zanon v. Moher, 136 Cal.App.2d 348, 350, 288 P.2d 597. On the other hand, if there is not substantial evidence to support any one of those elements, the refusal to give an instruction thereon is proper. Doran v. City and County of San Francisco, supra, 44 Cal.2d 477, 486, 283 P.2d 1; Kowalski v. Shell Chemical Corp., 177 Cal.App.2d 528, 537, 2 Cal.Rptr. 319; Hickambottom v. Cooper Transp. Co., 163 Cal.App.2d 489, 491, 329 P.2d 609; Clarida v. Aguirre, 156 Cal.App.2d 112, 115, 319 P.2d 20. The existence or nonexistence of such evidence is a question of law. Doran v. City and County of San Francisco, supra, 44 Cal.2d 477, 487, 283 P.2d 1. In determining the issue thus presented, the evidence is viewed most favorably to the contention that the doctrine is applicable. Warren v. Ubungen, 177 Cal.App.2d 605, 608, 2 Cal.Rptr. 411; Bonebrake v. McCormick, 35 Cal.2d 16, 19, 215 P.2d 728; Guyton v. City of Los Angeles, 174 Cal.App.2d 354, 361, 344 P.2d 910; Durkee v. Atchison, T. & S. F. Ry. Co., 159 Cal.App.2d 615, 620, 324 P.2d 91.

The record on appeal in this case is presented through a settled statement. The accident in question occurred in daylight, in the intersection of Mission Boulevard and San Antonio Avenue in San Bernardino County. Mission Boulevard is an eastwest, four-lane, divided through highway. San Antonio Avenue is a north-south, two-lane highway, posted with stop signs as it intersects Mission Boulevard. Immediately before the accident, the defendant, Jay Edward Griffith, was driving his automobile in an easterly direction along Mission Boulevard and the plaintiff, Antoinette DiSandro, was driving an automobile in a southerly direction along San Antonio Avenue. The east and west bound lanes of Mission Boulevard were separated by a curbed center island; the eastbound lanes consisted of a marked left turn lane, 13 feet in width, adjacent to and south of the center island; the inside eastbound lane, 11 1/2 feet in width, which was south of and adjoining the left turn lane, and the outside or curb lane which, including the paved portion of the shoulder, was 22 1/2 feet in width, and was south of and adjoining the inside lane. The total width of all the lanes south of the center island was 47 feet. The west bound lanes were of approximately similar dimensions. To the west of the intersection oleander bushes in the center island and a curve in the highway limited the range of vision available to a person within the intersection or to one approaching from the west; the range of vision to and from the intersection extended approximately 800 feet to and from the west.

The two automobiles collided at a point which the investigating officer testified was 19 feet north of the south curb of Mission Boulevard and 6 feet east of the west curb of San Antonio Avenue; the collision involved the center and left front of defendant's car and the right rear of the plaintiff's car commencing at the rear door.

The plaintiff testified that she brought her automobile to a stop at the limit line on the north side of Mission Boulevard; looked to the east; saw no approaching cars; proceeded across the north half thereof; brought her car to a stop in the middle of the intersection; looked to her right, which was to the west; did not see any cars approaching; proceeded across the eastbound lanes of Mission Boulevard; 'when she was approximately one car length within the south half of the intersection, * * * she saw the Respondent's automobile for the first time at a distance of approximately 408 ft. away'; and continued across until the collision occurred.

The defendant testified that when he first saw the plaintiff's automobiel he was approximately 150 to 160 feet west of the intersection and was traveling at an approximate speed of 40 to 50 miles per hour in the lane of traffic nearest the center divider; that the plaintiff's automobile then was moving southerly across the intersection and was approximately 10 feet south of the stop limit line located at the northern entrance thereto, which would place her somewhere in the outside or northerly west bound lane; that she appeared to be accelerating her speed; that immediately he applied his brakes but did not sound his horn as he did not have time to do so; and that he watched the plaintiff after first seeing her until the impact occurred and that during this time she was looking straight ahead and never slowed down, stopped or looked in his direction.

A passenger in defendant's automobile testified that when he first saw plaintiff, her automobile was in the middle of the westbound lanes of Mission Boulevard; that he looked down to see if the defendant was going to apply his brakes; that he saw the defendant's foot go down; and that he then looked up and saw the plaintiff's car a split second before the collision.

The investigating officer testified that the defendant's car left skid marks 75 feet in length, which began in the inside lane and turned gradually to the south, terminating at the point of impact.

'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.' Brandelius v. City & County of S. F., 47 Cal.2d 729, 743, 306 P.2d 432, 437; Hildebrand v. Los Angeles Junction Ry. Co., 53 Cal.2d 826, 830, 3 Cal.Rptr. 313.

We conclude that there is no substantial evidence in the record before us from which the trier of fact reasonably could have found that the defendant had the last clear chance by the exercise of ordinary care to do anything other than what he did do to avoid the accident.

Somewhere in excess of 75 feet west of the point of impact the defendant applied his brakes and attempted to avoid a collision with the plaintiff's automobile. According to his testimony this occurred when he first saw the plaintiff, and when he was 150 to 160 feet west of the intersection. The skid marks and the inescapable factor of reaction time confirm the defendant's approximation respecting the position of his automobile at the time when the incident initiating the application of brakes occurred. The plaintiff contends, however, that there is other evidence which supports a conclusion that the defendant saw her peril before the time he attempted to apply his brakes, and at a time when he could have avoided the accident by the exercise of ordinary care. This contention is based on the testimony of the plaintiff that when she was a car length into the south half fo the intersection and first saw the defendant's automobile it was approximately 408 feet away; on the testimony of the defendant's passenger that after he saw the plaintiff he looked to see if the defendant was going to apply his brakes and saw the defendant's foot go down; and upon the fact that the range of vision over the area separating the defendant and the plaintiff was 800 feet to and from the intersection.

The defendant claims that the testimony of the plaintiff with respect to distance is not substantial; is inherently improbable; and should be disregarded. Although conflicting as well as nonconflicting evidence may be relied upon in support of a request for an instruction on a relevant legal theory, such evidence must be of that substantial character required by law to support a verdict. In Estate of Teed, 112 Cal.App.2d 638, 644, 247 P.2d 54, 58, the court said:

'* * * if the word 'substantial' means anything at all, it clearly implies that such evidence must be of ponderable legal significance. Obviously the word cannot be deemed synonymous with 'any' evidence. It must be reasonable in nature, credible, and of solid value; it must actually be 'substantial' proof of the essentials which the law requires in a particular case.'

The arguments pro and con respecting the substantial nature of the evidence relied upon by the plaintiff consider the application of mathematical computations involving assumed factors unsupported by the evidence. The conclusions reached are speculative. The plaintiff's testimony is subject...