Hopkins v. Carter
Decision Date | 24 March 1952 |
Citation | 241 P.2d 1063,109 Cal.App.2d 912 |
Court | California Court of Appeals |
Parties | HOPKINS et ux. v. CARTER et al. Civ. 18670. |
Frye & Yudelson, North Hollywood, for appellants.
Williams & Cozy, Los Angeles, for respondents.
Appeal by plaintiffs, husband and wife, from a judgment entered upon a verdict for defendant in an action for damages for personal injuries and property damage resulting from a collision between plaintiffs' and defendant's automobiles. As no appeal lies from an order denying a motion for a new trial, plaintiffs' appeal therefrom is dismissed.
The principal question is whether the court erred in refusing to instruct the jury on the doctrine of last clear chance. The form of the instructions is not in question.
In determining this question, we state the evidence in the light Selinsky v. Olsen, 38 Cal.2d 102, 237 P.2d 645, 646.
The collision occurred on May 18, 1949, about 8 p. m., at the intersection of Foothill Boulevard and Maclay Avenue. Foothill Boulevard, an east-west street, is a through highway. Vehicle Code, § 82.5. Stop signs are located on the northwest and southeast corners of Maclay where it intersects Foothill. Although it was dark, the intersection was well lighted by three service stations located on the northwest, southwest, and southeast corners. It was drizzling, and while the pavement was wet it was not slick. Plaintiff Jeanette Hopkins, called plaintiff, was driving plaintiffs' car westerly on Foothill between 30 and 35 miles an hour. Just prior to the accident, defendant had been getting gasoline at the service station located on the northwest corner of the intersection.
Plaintiff testified she started slowing down some four or five or six car lengths back from the intersection. She came to a complete stop in the intersection to let an eastbound car pass. While in this position two cars passed her on her right, going west, and passed in front of defendant 'while he was sitting on the driveway' of the service station. The intersection being clear, she then proceeded to make her left-hand turn. When She was traveling approximately twelve or thirteen miles an hour while attempting the turn. At the time of the impact she was going 'between eighteen and twenty miles an hour.' Plaintiffs' car was struck almost dead center.
Defendant testified he was under the canopy of the service station on the northwest corner of Foothill and Maclay, facing west. He then moved his car so that it was flush with Foothill. There were no cars coming from the west. There were several cars approaching the intersection from the east. 2 At this time he was going 'between five and ten miles an hour' in low gear. He continued to observe plaintiffs' car. When plaintiffs' car was about 55 feet from the center of the intersection, he was going 'approximately twelve or fifteen miles an hour' and 'in second.' When he was about 25 feet from the center of the intersection he again observed plaintiffs' car, which was then about 35 feet from the center of the intersection, His brakes took hold but slid a little. At the time of the impact he was going about twenty to twenty-five miles an hour. He did not swerve his car to avoid the collision because Instead, he put on his brakes and went straight ahead. Plaintiff did not give a signal. Defendant placed the point of impact near the center of the southeast quadrant of the intersection, a distance of about 40 feet from where he first became aware that plaintiff was cutting the corner.
The applicability of the doctrine of last clear chance in a given case depends entirely upon the existence or nonexistence of the elements necessary to bring it into operation, and this question is controlled by factual circumstances and determinable by the fact-finder. Girdner v. Union Oil Co., 216 Cal. 197, 199, 13 P.2d 915; Bailey v. Wilson, 16 Cal.App.2d 645, 647, 61 P.2d 68. An instruction stating the doctrine is proper when the evidence shows: " That plaintiff has been...
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