Mehling v. Zigman
| Decision Date | 17 March 1953 |
| Citation | 116 Cal.App.2d 729,254 P.2d 141 |
| Court | California Court of Appeals Court of Appeals |
| Parties | MEHLING et al. v. ZIGMAN et al. Civ. 4394. |
James M. Thuesen and John D. Chinello, Fresno, for appellants.
Crowe, Mitchell & Hurlbutt, Visalia, Hansen & Barstow, Fresno, for respondents.
This action arises out of a collision which occurred when a Buick automobile owned by defendant and appellant Morris Carter, and being operated by defendant and appellant David Zigman, as driven into a tractor and two large van type trailers which had 'jackknifed' and were stopped on a public highway near Dinuba. The tractor and trailers were owned by plaintiff Valley Motor Lines, Inc., a corporation, and were being operated by plaintiff Edward Mehling.
In the complaint filed herein plaintiff Mehling sought damages for personal injuries and plaintiff Valley Motor Lines claimed damages for repairs to its equipment and for loss of use thereof. The defendants filed a cross-complaint in which David Zigman sought damages for personal injuries sustained as a result of the collision and Morris Carter sought damages for the destruction of his automobile. A jury trial was had which resulted in a verdict that plaintiffs take nothing by their complaint and that cross-complainants take nothing by their cross-complaint. Cross-complainants appeal from the judgment entered against them on the cross-complaint and base their appeal on the grounds (1) that the court erred in refusing to give an instruction to the jury on the doctrine of last clear chance; and (2) in giving an instruction in the language of Section 502 of the Vehicle Code.
The collision occurred at about 7:00 o'clock P.M. on October 5, 1950, near the city of Dinuba, on El Monte Way, an eastwest paved highway, divided by a white center line into eastbound and westbound traffic lanes, each 10 feet wide. There was an oil shoulder 1 1/2 feet wide on the south side of the paved portion of the highway. On the night of the accident Edward Mehling was driving a tractor and two van type trailers in a westerly direction on El Monte Way for his employer, Valley Motor Lines, Inc. Each of said vans was 20 feet in length, 8 feet in width and about 12 1/2 feet in height. Shortly prior to the collision, a car was driven out on to the highway in front of this equipment. Mehling swerved to the left to pass this car and then observed the lights of an automobile coming from the west. He then turned back into the north traffic lane, behind the car which was being driven westward. In this operation, the tractor and trailers 'jackknifed' and when they were brought to a stop, the tractor, headed south, was across the westbound traffic lane, with its front wheels on the white center line. There then was sufficient clearance for westbound traffic around the front end of the tractor. The first van, headed southwest, was off the roadway and the second van was approximately 9 feet north of the north edge thereof. The tractor motor was running and the two vans and tractor were still attached together. After his equipment was brought to a stop, Mehling did not attempt to move it for 10 or 15 seconds. He opened the door, put one foot on the running board of his tractor, and looked back to determine that the clearance lights and taillights on his equipment were still burning. Mehling testified that he then got behind the wheel of the tractor and was endeavoring to get his equipment in gear when he saw the glare of the headlights of the Buick automobile driven by Zigman approaching from the east; that the Buick was then about 900 feet away; that when it was about 400 feet distant, he formed the opinion that it was traveling at a speed of 80 miles per hour; that the Buick did not decrease its speed; that he did not put out any flares because 'it was faster getting the equipment off the road than it was putting out the flares'.
There is evidence in the record from which a jury could infer that the tractor and trailers remained in a position in which they were stopped for a period of one to five minutes before the accident happened. The uncontradicted evidence shows that during the last 1,000 feet of Zigman's approach to the point of impact there were no other vehicles approaching him from the west.
Appellant Zigman testified that he drove the Buick in the westbound traffic lane at a speed between 50 and 60 miles per hour; that he was driving a new automobile; that the lights on it were good and that he had them on 'high beam'; that he did not see the persons who were at the side of the road several hundred feet east of the standing tractor 'trying to flag him down'; that he did not see the equipment blocking the westbound traffic lane and was unaware of its existence; that he saw no lights on the equipment or any part of it; that he did not decrease his speed, and did not apply his brakes at any time; that he was 'right on top of this object' before he knew of its existence or nature and that he may or may not have swerved his automobile to the left a moment before the impact.
The elements of the last clear chance rule are:
'(1) That plaintiff has been negligent 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 evercise the same, and the accident results thereby, and plaintiff is injured as the proximate result of such failure.' Selinsky v. Olsen, 38 Cal.2d 102, 104, 237 P.2d 645, 646; Rodabaugh v. Tekus, 39 Cal.2d 290, 246 P.2d 663.
All of the elements necessary for the application of the rule must be present or the doctrine is inapplicable. If any one of them be absent, the rule does not apply and the case is governed by the ordinary rules of negligence and contributory negligence. Palmer v. Tschudy, 191 Cal. 696, 700, 218 P. 36; Ralston v. Hewitson, 82 Cal.App.2d 143, 144, 185 P.2d 644.
There is no question but that the appellant Zigman by his own negligence got himself in a position of danger. He arrived at that position when he reached the point at which he could no longer stop or slow down sufficiently to avoid the collision or pass to the left around plaintiffs' tractor. Rodabaugh v. Tekus, 39 Cal.2d 290, 246 P.2d 663. Since Zigman was traveling, according to his own testimony, between 50 and 60 miles per hour with a new automobile equipped with good lights on high beam, it is apparent that his position of danger was attained within a very short distance of the tractor and trailers. Obviously, plaintiff Mehling then did not have a last clear chance to avoid the accident which occurred within a few seconds. As was said in Rodabaugh v. Tekus, supra, 39 Cal.2d 295, 246 P.2d 663, 666, quoting from Poncino v. Reid-Murdock & Co., 136 Cal.App. 23, 28 P.2d 932:
To continue reading
Request your trial
-
Di Sandro v. Griffith
...163 Cal.App.2d 489, 494, 329 P.2d 609; Hall v. Atchison, T. & S. F. Ry. Co., 152 Cal.App.2d 80, 84, 312 P.2d 739; Mehling v. Zigman, 116 Cal.App.2d 729, 733, 254 P.2d 141; Berton v. Cochran, 81 Cal.App.2d 776, 779, 185 P.2d 349; Dalley v. Williams, 73 Cal.App.2d 427, 432, 166 P.2d 595; Ponc......
-
People v. Phillips
...337.) Generally speaking, driving under the influence of alcohol is negligence as a matter of law (see Mehling v. Zigman (1953) 116 Cal.App.2d 729, 734-736, 254 P.2d 141; Evid. Code, § 669), and justifies punitive damages in an appropriate case (see Peterson v. Superior Court (1982) 31 Cal.......
-
Fambrini v. Stikkers
...supra; Hall v. Attchison, T. & S. F. Ry. Co., 152 Cal.App.2d 80, 312 P.2d 739; Wilson v. Knudsen Creamery Co., supra; Mehling v. Zigman, 116 Cal.App.2d 729, 254 P.2d 51; Berton v. Cochran, supra; Poncino v. Reid-Murdock & Co., supra. There is no substantial evidence here that respondent had......
-
Fleharty v. Boltzen
...Co., 113 Cal.App.2d 269, 273-276, 247 P.2d 951; Hazelett v. Miller, 115 Cal.App.2d 801, 805-807, 252 P.2d 997; Mehling v. Zigman, 116 Cal.App.2d 729, 732-734, 254 P.2d 141; Schouten v. Crawford, 118 Cal.App.2d 59, 63-65, 257 P.2d 88; and Story v. Cox, 130 Cal.App.2d 231, 232-234, 278 P.2d A......