Parrott v. Furesz

• Decision Date: 31 July 1957
• Citation: 314 P.2d 47,153 Cal.App.2d 26
• Court: California Court of Appeals
• Parties: John W. PARROTT, Plaintiff and Appellant, v. Bela A. FURESZ, Defendant and Respondent. Civ. 17201.

Page 47

314 P.2d 47

153 Cal.App.2d 26

John W. PARROTT, Plaintiff and Appellant, v. Bela A. FURESZ, Defendant and Respondent.

Civ. 17201.

District Court of Appeal, First District, Division 2, California.

July 31, 1957.

Rehearing Denied Aug. 30, 1957.

Hearing Denied Sept. 25, 1957.

John J. Taheny, San Francisco, for appellant.

Ropers & Majeski, Redwood City, for respondent.

DOOLING, Justice.

Plaintiff appears from a judgment for defendant entered on a jury's verdict. The action is one for personal injuries. While driving northerly on Canada Road, plaintiff crossed over to the south-bound lane at some distance from its intersection with Pulgas Road intending to make a left turn into Pulgas Road. While in the southbound lane he was struck from the rear by the automobile driven by defendant. An automobile driven by one Sworthout had been following plaintiff's car and defendant, also going northerly, had turned into the south-bound lane to pass Sworthout. The evidence will be more fully discussed in considering the failure of the court to give instructions on the last clear chance doctrine.

We are satisfied that plaintiff must be held guilty of negligence as a matter of law in entering and proceeding northerly for a considerable distance in the south-bound lane and that his purpose to ultimately make a left turn cannot excus such conduct. For that reason we will consider only the failure of the court to instruct on the last clear chance.

In determining whether the trial court should have instructed the jury on the doctrine of last clear chance '[w]e must view the evidence most favorable to the contention that the doctrine is applicable.' Selinsky v. Olsen, 38 Cal.2d 102, 103, 237 P.2d 645, 646; Bonebrake v. McCormick, 35 Cal.2d 16, 19, 215 P.2d 728.

Taking the evidence most favorable to the plaintiff on the theory of last clear chance we may fairly summarize it as follows: When plaintiff's automobile was 300 feet from the intersection of Pulgas Road he extended his left arm horizontally from the window of his car to indicate that he was making a left turn and at 225 feet from the intersection he actually began to turn left into the south-bound lane. Plaintiff testified that he was then 250 feet ahead of the automobile driven by Sworthout which was following him in the north-bound lane. At that time both the plaintiff and Sworthout were traveling at a speed of between 35 and 45 miles per hour. While plaintiff was gradually slowing his speed preparatory to making a left turn into Pulgas Road, according to Sworthout's testimony the distance between their cars was not appreciably decreased when plaintiff had straightened his car out in the south-bound lane. Plaintiff testified that he was 175 feet from the intersection of Pulgas Road when his car was completely straightened in the south-bound lane. At that moment he saw the lights of defendant's automobile as his car started to pass Sworthout's. Taking the evidence most favorable to plaintiff, defendant's car was then more than 200 feet behind plaintiff's car, and at least 400 feet from the point of ultimate collision, which was 6 feet south of the southerly line of Pulgas Road.

Sworthout testified that the visibility was good and it was still light. Sworthout had no difficulty seeing plaintiff's extended left arm. He testified: 'I noticed it way out, I noticed particularly he had an awfully long arm; it extended an awfully long ways.'

When defendant passed Sworthout's car he was traveling at a speed of 55 to 65 miles per hour. Plaintiff testified that he kept his left arm extended horizontally from the window of his car continuously from the time that he started to turn into the south-bound lane until a point about 40 feet from Pulgas Road when he withdrew it to make the left hand turn into that road. He relized at 60 feet from Pulgas Road that defendant's car was continuing in the south-bound lane and that he was in danger of being struck by it and he began to wave his extended left hand up and down. It was then too late for him to attempt to turn into the north-bound lane and he attempted to make the left turn into Pulgas Road. His left rear fender was struck by the left front portion of defendant's car as he was already turned at an angle to enter Pulgas Road.

Sworthout testified that when he first heard the squealing of defendant's brakes, defendant's car was already 20 to 25 yards ahead of Sworthout's car. The tire-marks from the braking of defendant's car measured 107 feet to the point of impact, so that the jury could find that at well over 100 feet from the point of collision defendant was already 60 to 75 feet ahead of Sworthout's car.

The elements of the last clear chance doctrine have been often stated. We quote the requirements as reiterated in Brandelius v. City & County of S. F., 47 Cal.2d 729, 740, 306 P.2d 432, 439: '(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 sitution, and (3) has the last clear chance to avoid the accident by exercising ordinary care, and fails to exercise the same, and the accident results thereby, and plaintiff is injured as the proximate result of such failure.'

Under the evidence above summarized the jury could find the existence of all of these required elements. The negligence of the plaintiff in driving on the wrong side of the highway is clear. The jury could find that plaintiff was unaware of his danger until it was too late for him to escape. The plaintiff was in plain view of defendant and directly in front of him with his left arm extended horizontally for 400 feet before the collision. There was nothing between plaintiff's car and defendant to obscure defendant's view. Defendant was at all times looking along the road in front of him. It was still light with good visibility. The jury could therefore infer that defendant saw plaintiff directly in front of him with his arm extended from his car as soon as he turned into the south-bound lane to pass Sworthout. Selinsky v. Olsen, supra, 38 Cal.2d 102, 105, 237 P.2d 645, and cases there cited. Seeing plaintiff thus proceeding in the wrong traffic lane with his hand thus extended, indicating a left turn and not a right one, the jury could find that defendant should have known that plaintiff did not intend to turn back into the north-bound lane and instead was proceeding unaware of his peril. If the jury so found they could further find that defendant had the last clear chance to avoid the collision by turning back into the north-bound lane ahead of Sworthout's car. If the jury believed Sworthout's testimony that defendant was 60 to 75 feet ahead of Sworthout's car when he first set his brakes over 100 feet from the point of collision the jury could reasonably conclude that defendant had ample time to turn back to the north-bound lane after it must have been obvious to him that plaintiff intended to continue in the south-bound lane. The possibility of avoiding a collision by turning into another lane has been held...