Peterson v. Burkhalter

• Decision Date: 30 November 1951
• Citation: 237 P.2d 977,38 Cal.2d 107
• Court: California Supreme Court
• Parties: PETERSON et al. v. BURKHALTER. L. A. 22005

Page 977

237 P.2d 977

38 Cal.2d 107

PETERSON et al. v. BURKHALTER.

L. A. 22005.

Supreme Court of California

Nov. 30, 1951.

Betts, Ely & Loomis and John A. Loomis, all of Los Angeles, for appellant.

Cushman, Lynch & Wetherbee and E. Spurgeon Rothrock, all of Los Angeles, for respondents.

EDMONDS, Justice.

A motor scooter ridden by Jon Peterson, a minor, and an automobile which Everett G. Burkhalter was driving collided at an intersection. The young man is suing for damages for personal injuries sustained at that time, and his father claims special damages for medical services. Burkhalter's appeal from the judgment entered against him upon the verdict of a jury presents only the question as to the propriety of an instruction on the doctrine of last clear chance.

Stated most favorably to the giving of the instruction, the evidence shows the following facts:

Burkhalter was proceeding in his automobile in a northerly direction on Craner Avenue at about 15 to 20 miles per hour. According to his testimony, when he was approximately 50 feet south of the intersection of Craner Avenue and Collins Street, he saw Peterson on the motor scooter. At that time, Peterson was traveling east on Collins Street at approximately 30 miles per hour. The boy was about 75 feet from the intersection and looking over his right shoulder in the opposite direction from which he was traveling.

Burkhalter directed his attention to the right and when he next saw Peterson, the motor scooter was four to five feet from the left side of the Burkhalter automobile, which was then in the center of the intersection. The boy was still looking over his right shoulder. The motor scooter hit the automobile at the left rear door.

Burkhalter testified that the impact occurred at a point approximately one and one-half feet north of the center of Collins Street and at the center of Craner Avenue. His automobile was then two thirds of its length past the center of the intersection and traveling at a speed of 15 to 18 miles per hour. The motor scooter struck the automobile at a slight angle.

Burkhalter told the jury that his brakes were in excellent condition; he could have stopped his car within 'just a few feet, 10 or 15, possibly'. However, he did not sound his horn at any time prior to the accident nor did he apply his brakes or attempt to change his direction of travel. He stated that when he saw the boy immediately before the impact, he tried to accelerate in order to move out of Peterson's way, but was unsuccessful in doing so. The automobile came to rest 28 to 32 feet past the point of collision but Burkhalter stated that he could have stopped it within a lesser distance.

The jurors returned a verdict for only the amount of special damages sustained by the father. Upon inquiry by court and counsel, the foreman stated that they had found against the boy on the ground of contributory negligence. The doctrine of last clear chance was then restated, and after further deliberation, a verdict was returned for the same amount but in favor of both the boy and his father. The appeal is from the judgment entered accordingly.

No complaint is made of the form of the instruction on the doctrine of last clear chance, but Burkhalter contends that the rule is inapplicable. None of the required elements is present, he says, and a judgment must be entered in his favor because the evidence shows, as a matter of law, that Peterson was guilty of contributory negligence.

An instruction stating the doctrine of last clear chance is proper when the evidence shows: '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; 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 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.' Girdner v. Union Oil Co., 216 Cal. 197, 202, 13 P.2d 915, 917. In substance, the instruction given at the request of Peterson stated these essential elements.

Burkhalter contends that the evidence does not show that Peterson was in 'a position of danger' when first observed by him; that is, when Peterson was 75 feet from the intersection, traveling 30 miles per hour, and looking in the opposite direction from that in which he was moving. 'A position of danger', he argues, means that the plaintiff must have been so near the path of travel of the defendant's automobile that he could not escape a collision by the exercise of ordinary care.

This reasoning is based upon the fallacious assumption that the doctrine of last clear chance is limited in application to a situation where the plaintiff is physically helpless to prevent the impending accident through the exercise of ordinary care. Although Burkhalter cites decisions in which the plaintiff, at the time of discovery, was in the path of the approaching vehicle, neither the opinions in those cases nor any logical reason justifies such a limitation upon the rule. See Girdner v. Union Oil Co., supra; Bonebrake v. McCormick, 35 Cal.2d 16, 215 P.2d 728. When Peterson was first seen by Burkhalter, the vehicles were 75 to 50 feet, respectively, from the intersection, and traveling at speeds which would place them in the intersection at the same time. To argue that Peterson was not then in 'a position of danger' is to disregard reality.

As to the contention that Peterson may not have the benefit of the doctrine of last clear chance because he was physically able to prevent the accident by stopping or turning, Burkhalter ignores the fact that the inattentive plaintiff, as well as the physically helpless one, comes within the scope of the rule. It applies '* * * 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 * * *.' Girdner v. Union Oil Co., supra. The continuing negligence of a plaintiff does not bar him from obtaining a judgment against the person who had the last clear chance to avoid the accident.

Also relied upon for reversal of the judgment is the testimony of Burkhalter that when he first saw Peterson he was not aware of a possible collision. But the application of the doctrine of last clear chance is not dependent upon an admission by the defendant that he expected that there might be a collision. As was stated in Cady v. Sanford, 57 Cal.App. 218, 226, 207 P. 45, 48. 'It was not necessary that appellant should actually know that an accident was inevitable if he failed to exercise care. It is enough if the circumstances of which he had knowledge were such as to convey to the mind of a reasonably prudent man a question as to whether respondent would be able to escape a collision.'

Burkhalter compares his situation to that of the defendant in Johnson v. Southwestern Engineering Co., 41 Cal.App.2d 623, 107 P.2d 417. There the rule of last clear chance was held to be inapplicable because there was no evidence showing knowledge by the defendant of the plaintiff's danger. Johnson had fallen asleep while driving his automobile, and there was no evidence that the driver of the other car was aware of this fact. For that reason, it was held, the defendant did not know that Johnson was in...