Jobe v. Harold Livestock Commission Co.

• Decision Date: 25 September 1952
• Citation: Jobe v. Harold Livestock Commission Co., 247 P.2d 951, 113 Cal.App.2d 269, 3 A.L.R.3d 180 (Cal. App. 1952)
• Court: California Court of Appeals
• Parties: JOBE v. HAROLD LIVESTOCK COMMISSION CO. et al. Civ. 18964.

Page 951

247 P.2d 951

113 Cal.App.2d 269

JOBE v. HAROLD LIVESTOCK COMMISSION CO. et al.

Civ. 18964.

District Court of Appeal, Second District, Division 3, California.

Sept. 25, 1952.

Edward Feldman, Los Angeles, for appellant.

Bauder, Gilbert, Thompson & Kelly, Los Angeles, for respondents.

SHINN, Presiding Justice.

At about 11 o'clock a. m., October 19, 1949, plaintiff James M. Jobe and his wife, Mary, were riding in an autoette driven by Mr. Jobe. An autoette is a small three wheel vehicle operated by batteries. They were proceeding east on Walnut Street in the Bellflower district of Los Angeles County. They reached the intersection of Clerk Street where they stopped. They then proceeded into Clark Street until their vehicle came into collision with an automobile of Harold Stiefel, doing business as Harold Livestock Commission Company, driven by his employee, Stiefel, Jr., hereinafter called defendant. Walnut Street is 34 feet wide, Clark Street is 54 feet wide. There was a stop sign on Walnut at the intersection of Clark. The point of the collision was about 9 feet north of the south curb line of Walnut and 13 feet west of the east line of Clark Street. The car of defendant left skid marks 58 feet long before it reached the point of collision and 14 or 15 feet beyond. The autoette came to rest about 5 feet southwest of the northeast curb intersection. Mrs. Jobe met her death in the accident and Mr. Jobe was injured. In this action for damages the verdict and judgment were in favor of Stiefel, Sr., doing business as Harold Livestock Commission Company and Stiefel, Jr. Plaintiff appeals. The points on appeal are the following: Refusal of plaintiff's requested instructions (1) on the doctrine of last clear chance; (2) that violation of sections of the Vehicle Code constituted negligence as a matter of law.

Mr. Jobe, 74 years of age, testified that at the time of the impact he was traveling 4 or 5 miles an hour. He did not see defendant's car. Stiefel, Jr. testified that he was traveling north on Clark Street along the white line between the center line and the east curb between 25 and 35 miles an hour. The weather was clear. He first saw the autoette as it approached the center line of Clark Street. He immediately applied his brakes and veered to the right; he was about 75 feet from the autoette when he first saw it. It was going slowly at that time. The roadway was level and dry. From the time he had crossed Arkansas Street a block south of Walnut he had been looking straight ahead. He did not see the autoette approach or enter the intersection. His brakes were in good condition. A police officer produced by plaintiff as an expert witness stated his opinion that a 1949 Buick (the Stiefel car), traveling on a dry level asphalt highway, which skidded 58 feet up to the point of impact and 15 feet after the point of impact would have been traveling at 39.1 miles per hour; that at 25 miles per hour it could have been stopped in 56.7 feet and at about 30 miles per hour it could have been stopped in 75 feet. The foregoing is all the evidence that had any bearing upon the applicability of the doctrine of last clear chance. We do not believe the court was in error in refusing to instruct in that doctrine. This was one of the unfortunate, but rather common, intersection collisions in which neither driver was alert to observe traffic conditions and approaching vehicles. It was a reasonable conclusion that Stiefel, Jr. was negligent in failing to observe the autoette between the time it left the west curb line and the center line of Clark Street and that Mr. Jobe also was negligent. There was nothing that would have obstructed their views of the intersection.

A primary element of the doctrine of last clear chance is that the one against whom it is asserted had actual knowledge of the perilous situation of the one who claims the benefit of the doctrine. Plaintiff's argument upon the evidence, which he contends called for an instruction on the last clear chance doctrine, is based principally upon the expert testimony given by the officer. His estimate of the speed of defendant's car at 39.1 miles per hour, based upon the length of the skid marks and condition of the highway, was a proper use of expert testimony and would have warranted the jury in finding that defendant was traveling at about that speed. Other opinions of the witness were offered in an attempt to prove how far away defendant was from the point of the accident at the time he first saw plaintiff's car. The theoretical distance was computed by taking the length of the skid marks, estimating the speed of the car, and adding the distance a car would travel in three-quarters of a second at the speed indicated by the skid marks. The sum would be the theoretical distance between defendant's car, when he realized he should stop, and the point of the accident. The witness testified that three-quarters of a second is the 'reaction time,' or the average time, it takes all ages and classes of drivers to apply their brakes after realizing they should do so. He did not explain the basis of this assumption of fact, nor whether it was based upon tests of drivers who knew or those who did not know they were under observation for the purpose of testing their reflex actions. He did testify, however, that he could not express any opinion as to defendant's 'reaction time,' without making tests. This was sufficient to have excluded the opinions of the witness which assumed a theoretical time within which defendant would have applied his brakes.

In order to warrant an instruction on the last clear chance doctrine there must have been substantial evidence of the following: (1) Plaintiff, as a result of his negligence, was in a position of danger from which he could not escape; (2) defendant had actual knowledge of plaintiff's presence and knew, or in the exercise of ordinary care should have known, plaintiff could not escape; (3) with such knowledge defendant, by the use of ordinary care, could have avoided the accident but failed to exercise such care.

There was evidence of plaintiff's negligence; he either did not look for approaching vehicles as he drove into the intersection or did not look carefully, and did not see defendant's car. There was evidence that defendant knew of plaintiff's hazardous position and it could have been inferred that he realized or should have realized plaintiff could not escape from it. Defendant made a determined effort to stop. He was not relying upon plaintiff's stopping or clearing the intersection. We shall assume this was sufficient to supply the second element.

We have narrowed our case down to the third question involved, namely, was there substantial evidence that defendant was far enough away from the point of the accident to have been...