Hopkins v. Carter

Decision Date24 March 1952
Citation241 P.2d 1063,109 Cal.App.2d 912
CourtCalifornia Court of Appeals
PartiesHOPKINS et ux. v. CARTER et al. Civ. 18670.

Frye & Yudelson, North Hollywood, for appellants.

Williams & Cozy, Los Angeles, for respondents.

VALLEE, Justice.

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 'most favorable to the contention that the doctrine is applicable * * * since plaintiff is entitled to an instruction thereon if the evidence so viewed could establish the elements of the doctrine. [Citations.]' 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 'approximately half of my car was past the intersection of Maclay * * * I first noticed the lights shine into my car. * * * and I knew the car [defendant's] was coming pretty rapidly. * * * I was in second gear when I proceeded to make my left hand turn, so I immediately stepped on the throttle trying to avoid the accident, to get out of the way. Because I knew in that position, I could not possibly apply my brakes and get out of the way to avoid the accident.' 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. 'I waited until these cars went by; and at that time there was another car [plaintiffs'] coming quite a ways down. So I turned out and proceeded to go down Foothill east. When I got approximately along in here (indicating), 1 I noticed the car [plaintiffs'] I had seen previously, coming up here (indicating).' 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, 'And then I saw the car swing over just a few seconds later. * * * I put on my brakes to see if I could stop; but, because of the street being wet, I didn't come to a complete stop before the collision.' 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 'I didn't know for sure but what she would pull back when she saw me in the intersection. That would make a head-on.' 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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11 cases
  • Philo v. Lancia
    • United States
    • California Court of Appeals
    • November 28, 1967
    ...like cases. (Peterson v. Burkhalter, 38 Cal.2d 107, 237 P.2d 977; Wylie v. Vellis, 132 Cal.App.2d 854, 283 P.2d 327; Hopkins v. Carter, 109 Cal.App.2d 912, 241 P.2d 1063.) Defendant contends that the doctrine is not applicable where plaintiff is driving a rapidly moving vehicle, citing amon......
  • Daniels v. City and County of San Francisco
    • United States
    • California Supreme Court
    • April 9, 1953
    ...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 The accident occurred on March 5, 1949, about 5:30 p. m. a......
  • Gigliotti v. Nunes
    • United States
    • California Court of Appeals
    • October 18, 1954
    ...Lebkicher v. Crosby, 123 Cal.App.2d 631, 638, 267 P.2d 361; Buck v. Hill, 121 Cal.App.2d 352, 263 P.2d 643; Hopkins v. Carter, 109 Cal.App.2d 912, 916, 241 P.2d 1063. When a knowledge of this section will tend to aid a jury the trial court should, if requested, instruct upon it. Rednall v. ......
  • Sills v. Los Angeles Transit Lines
    • United States
    • California Supreme Court
    • April 9, 1953
    ...so viewed could establish the elements of the doctrine.' Selinsky v. Olsen, 38 Cal.2d 102, 103, 237 P.2d 645, 646; Hopkins v. Carter, 109 Cal.App.2d 912, 913, 241 P.2d 1063, we have concluded that the requested instruction should have been given, and that its refusal constituted prejudicial......
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