Odekirk v. Austin, 7125

• Citation: 90 Ariz. 97,366 P.2d 80
• Decision Date: 08 November 1961
• Docket Number: No. 7125,7125
• Parties: Wilhelmina ODEKIRK, as Guardian ad Litem for Cieland Odekirk, a Minor, Appellant, v. John D. AUSTIN, Appellee.
• Court: Supreme Court of Arizona

Page 80

366 P.2d 80

90 Ariz. 97

Wilhelmina ODEKIRK, as Guardian ad Litem for Cieland Odekirk, a Minor, Appellant, v. John D. AUSTIN, Appellee.

No. 7125.

Supreme Court of Arizona, In Banc.

Nov. 8, 1961.

Trew, Woodford & Dodd, Phoenix, for appellant.

Snell & Wilmer, Phoenix, for appellee.

BERNSTEIN, Vice Chief Justice.

The sole question presented by this appeal is whether the trial court erred in refusing to instruct the jury as to the doctrine of last clear chance.

In determining whether the plaintiff's-appellant's request for submission of a last clear change issue to the jury was properly refused we will consider the facts in the light most favorable to plaintiff-appellant together with the logical inferences which reasonably flow from such facts. Casey v. Marshall, 64 Ariz. 232, 168 P.2d 240 (1946).

The facts are: about 5:15 P.M. on April 17, 1957, plaintiff Cleland P. Odekirk, an eithteen year old college student, disembarked from a friend's automobile at the northeast corner of Seventh Avenue and West McDowell Road in Phoenix. It was a clear, dry day. He proceeded west across the intersection on the north side of West McDowell Road and began running west on the sidewalk. The plaintiff did not remember having left the sidewalk.

A motorist, Mr. O'Brien, driving in the eastbound lane at the time of the collision, testified that he first observed the plaintiff running down the steeet in a westerly direction in the westbound lane. At this time the plaintiff was a foot and a half from the north curb of West McDowell Road running paralled to the curb. The plaintiff then moved another foot to the south into the street at which time Mr. O'Brien observed the defendant's automobile coming from behind the plaintiff at approximately fifteen or sixteen miles per hour. Mr. O'Brien did not see the actual collision because he had passed the point of impact, but estimated tht it was between five to seven seconds from the time he first observed the plaintiff until the collision.

The defendant stated that he did not see the plaintiff until an instant before the impact and that he immediately put on his brakes but could not stop in time. The point of impact was a little over four feet south of the north curb.

The plaintiff brought this action alleging negligence on the part of the defendant. The defendant answered setting up the affirmative defense of contributory negligence. The case was tried before a jury who returned a verdict for the defendant. Thereafter judgment was entered, motion for new trial denied, and this appeal followed.

From the evidence adduced at the trial the jury might have believed the defendant did not see the plaintiff until an instant before the injury, but that he, in the exercise of reasonable care, should have seen the plaintiff as he proceeded from the sidewalk onto the street. Therefore the evidence would sustain a finding that the defendant was negligent in failing to keep a proper lookout. Pacific Greyhound Lines v. Uptain, 81 Ariz. 359, 306 P.2d 281 (1957).

There are few, if any, legal doctrines that are more difficult of logical application to varied and ever varying situations than that known as the doctrine of last clear chance, and there is accordingly a vast amount of case law dealing with the subject. Wide research has revealed that the experience of the state courts in applying the doctrine has presented similar problems. Beginning with broad statements, they have found that they are too borad and have modified them only to find that the rules laid down do not apply to the ever varying situations and must be explained and modified again. This process has not yet been completed.

The doctrine of last clear chance is applied for the purpose of determining the legal proximate cause of the injury. The reasoning behind the doctrine is that although the negligence of both plaintiff and defendant continues up to the time of the injury, plaintiff's negligence is remote while the defendant's conduct is the proximate cause of the accident. But 'the biggest problem for both the trial and appellate courts necessarily arises in attempting to determine whether the negligent acts of both parties concur as proximate cause. If so, then clearly defendant cannot be guilty of having had the last clear opportunity to avoid the accident.' Hirsh v. Manley, 81 Ariz. 94, 300 P.2d 588, 591 (1956).

We have heretofore stated that we will follow the principles set forth in the American Law Institute's Restatement of the Law except in cases where a different rule has been laid down by this Court. Irwin v. Murphey, 81 Ariz. 148, 302 P.2d 534 (1956); Rodrinquez v. Terry, 79 Ariz. 348, 290 P.2d 248 (1955); Reed v. Real Detective Pub. Co., 63 Ariz. 294, 162 P.2d 133 (1945); Waddell v. White, 56 Ariz. 420, 108 P.2d 565 (1940). Under Restatement of the Law, Torts, §§ 479, 480, there are two situations to which the doctrine of last clear chance is applicable.

First, where the defendant did not actually see the peril of the plaintiff, but by keeping a reasonable careful lookout should have seen the peril of the plaintiff and by the exercise of reasonable care have thereafter avoided the injury. In this situation the doctrine only applies when the plaintiff's negligence has terminated or culminated in a situation of peril from which he could not, by the exercise of reasonable care, extricate himself. Gray v. Woods, 84 Ariz. 87, 324 P.2d 220 (1958); Hirsh v. Manley, supra; Restatement of the Law, Torts, § 479.

It is significant to note that the situation of danger or position of danger referred to in the authorities dealing with the last clear chance doctrine, is reached only when a plaintiff, moving toward the path of an oncoming object has reached a position from which he cannot escape by the exercise of ordinary care.

'* * * Where the defendant does not actually know of the plaintiff's situation of peril, the doctrine can only properly be applied where the plaintiff has gotten into a position of inextricable peril. An illustration of this is where a person has caught his foot in a railroad switch, or is in some other similar predicament, so that he is thereafter unable to avert the injury. In such a situation, the plaintiff's negligence has come to rest. In such circumstances the defendant may be held responsible if he either knows, or in the exercise of reasonable care should know, of the plaintiff's helpless situation in time to avoid the injury and fails to do so.

'In regard to the application of this principle, the plaintiff here is faced with a dilemma: she was either in inextricable peril or she was not. If she was not in inextricable peril, then at any instant up to the time she got...