Rodabaugh v. Tekus

• Decision Date: 14 July 1952
• Citation: 246 P.2d 663,39 Cal.2d 290
• Parties: RODABAUGH et al. v. TEKUS. L. A. 22246
• Court: California Supreme Court

Page 663

246 P.2d 663

39 Cal.2d 290

RODABAUGH et al. v. TEKUS.

L. A. 22246.

Supreme Court of California

July 14, 1952.

Rehearing Denied Aug. 7, 1952.

Elmer R. Guy, Fullerton, Hirson & Horn and Theodore A. Horn, Los Angeles, for appellants.

Robert A. Cushman, Los Angeles, for respondent.

SPENCE, Justice.

Plaintiffs, the widow and adult sons of Andrew S. Rodabaugh, brought this action to recover damages for the latter's death as a result of an automobile collision. Following the denial of defendant's motion for a directed verdict, the jury returned a verdict in plaintiffs' favor for $2,500. Defendant then moved for judgment notwithstanding the verdict. The trial court granted this motion, and judgment was entered in defendant's favor. On this appeal, plaintiffs challenge the correctness of this ruling.

Plaintiffs conceded in the trial court and now concede that the deceased was guilty of negligence in the operation of his own automobile, and that his negligence contributed to his death. However, the trial court instructed the jury on the doctrine of last clear chance. Defendant maintains that the evidence was insufficient to sustain plaintiffs' recovery on that theory, and that the trial court properly so determined in granting his motion for judgment notwithstanding the verdict. Viewing the evidence in the light most favorable to plaintiffs, with every legitimate inference drawn in their favor, Neel v. Mannings, Inc., 19 Cal.2d 647, 649-650, 122 P.2d 576; Champion v. Bennetts, 37 Cal.2d 815, 820, 236 P.2d 155; Shannon v. Thomas, 57 Cal.App.2d 187, 192-193, 134 P.2d 522, defendant's position must nevertheless be sustained.

There is no material conflict in the evidence. The only eye witnesses were defendant and his passenger. Plaintiffs called defendant under section 2055 of the Code of Civil Procedure, and they based their claims upon the testimony elicited from him. Defendant called his passenger as a defense witness, and his testimony substantially corroborated that of defendant.

The accident occurred in Orange County about 7:20 a.m. on August 24, 1948, at the intersection of Bolsa Street, an east and west state highway, and Golden West Avenue, a county road running north and south. Both roadways are approximately 20 feet wide and are paved, but with soft, sandy shoulders on both sides of the pavement. There are ditches on either side of Golden West Avenue. The view of the intersection is unobstructed from all sides, and at the time of the accident, there was a slight fog with visibility about 500 feet. Bolsa Steet, on which defendant was traveling, is a through highway, and at the north and south approaches to it from Golden West Avenue there are regulation stop signs. (Veh. Code, § 471.) In addition, the word 'stop' and a white stop line are painted across the northbound traffic lane of Golden West Avenue a few feet south of Bolsa Street. There also is a wavering white line crossing and recrossing the white center line of Golden West Avenue for approximately 300 feet south of the intersection.

Decedent was driving north on Golden West Avenue at 35 to 40 miles per hour, and defendant was driving west on Bolsa Street at approximately 40 miles per hour. When defendant first observed decedent, each of the automobiles was approximately 500 feet from the intersection. Decedent subsequently failed to heed the stop warnings, and continued into the intersection to the point of impact without slackening his speed.

Defendant testified that he continued to watch decedent's car; that when defendant was some 75 to 100 feet from the intersection and saw that decedent was not slowing down, he started to apply his brakes gently, thinking that decedent would probably stop; that as decedent approached, he appeared to be looking straight ahead and did not slacken his speed at any time before the impact occurred; that when decedent did not slow down, defendant applied his brakes harder at about 75 feet from the intersection, and at a distance of 35 feet he slammed them on, leaving skid marks on the pavement. Defendant further testified that traveling at 40 miles per hour, he could have stopped his car in approximately 60 feet. Defendant did not turn to the right or left before the impact, and his car struck decedent's car on the right side at the rear door and wheel. The collision occurred in the northeast quadrant of the intersection. When the vehicles came to rest, decedent's car was in a ditch near the northwest corner of the intersection, some 39 feet from the point of the impact, and defendant's car was some 25 feet west of said point facing east.

The parties are agreed on the necessary elements which must be present in order to warrant the application of the last clear chance doctrine. These elements were stated by this court in Girdner v. Union Oil Co., 126 Cal. 197, 202, 13 P.2d 915; and were recently reiterated in Selinsky v. Olsen, 38 Cal.2d 102, 237 P.2d 645, and Peterson v. Burkhalter, 38 Cal.2d 107, 237 P.2d 977. The real dispute between the parties here involves the question of whether there is any substantial evidence to meet all the essential requirements for the application of that doctrine. Plaintiffs contend that there is such evidence in the record before us. Defendant concedes that the evidence is sufficient to establish that decedent through his own negligence placed himself in a position of danger, and that prior to the occurrence of the collision defendant had actual knowledge of that fact. Defendant contends, however, that there is no substantial evidence to show that after defendant acquired knowledge of decedent's perilous situation, he had a clear chance to avoid the collision by the exercise of ordinary care or that he failed to exercise such care.

In discussing the contentions of the parties, it is important to bear in mind that the mere fact that the evidence in a given case may be sufficient to sustain a finding of negligence on the part of a defendant does not justify the conclusion that such evidence is sufficient to permit the application of the last clear chance doctrine. Negligence is but one of the several elements involved in said doctrine, and reliance on the doctrine presupposes negligence on the part of both parties. In addtion, however, there must be substantial evidence to show that defendant had a last clear chance to avoid the accident. Dalley v. Williams, 73 Cal.App.2d 427, 433, 166 P.2d 595; Berton v. Cochran, 81 Cal.App.2d 776, 779, 185 P.2d 349; DeVore v. Faris, 88 Cal.App.2d 576, 583, 199 P.2d 391.

We may assume without deciding that there is sufficient evidence to sustain a finding of some negligence on the part of defendant, despite the fact that he was traveling on a through highway and was entitled to assume, until the contrary was apparent, that decedent would obey the law and would not drive his car past the stop sign directly into the path of defendant's car. Veh.Code, §§ 552, 577; Dickinson v. Pacific Greyhound Lines, 55 Cal.App.2d 824, 827, 131 P.2d 401. However, the evidence is insufficient to support a finding that after defendant discovered decedent's peril, he had a last clear chance to avoid the collision. The fact that defendant saw that decedent was looking straight ahead while decedent was traveling approximately 500 feet in approaching the intersection does not establish that decedent was in a position of danger this entire distance. Decedent was not in a position of danger until he arrived at a point at which he could no longer stop or slow down in time to avoid a collision. Dalley v. Williams, supra, 73 Cal.App.2d 427, 735, 166 P.2d 595; also, Young v. Southern Pacific Co., 182 Cal. 369, 380-381, 190 P. 36. Defendant had the right to assume that decedent possessed normal faculties, and that he saw the stop warnings which were directly within the range of his vision. Folger v. Richfield Oil Corp., 80 Cal.App.2d 655, 660-661, 182 P.2d 337.

Plaintiffs set forth the respective speeds and distances found in the testimony, and then argue by a series of mathematical calculations that such evidence is sufficient to support a finding that defendant had a last clear chance to avoid the accident. In our view this argument is without merit. Under any view of the testimony it is clear that both cars were approaching the intersection at approximately the same time and at approximately the same speed. Disregarding for the moment the fact that defendant was traveling on the through highway and decedent was traveling on a road which was plainly marked with stop warnings, it is apparent that this case presents the picture of one of the usual types of intersection collisions between two rapidly moving vehicles. It has been frequently stated that the last clear chance doctrine is ordinarily inapplicable under such conditions. Poncino v. Reid-Murdock & Co., 136 Cal.App. 223, 232, 28 P.2d 932; also Johnson v. Sacramento Northern Ry., 54 Cal.App.2d 528, 532, 129 P.2d 503; Dalley v. Williams, surpa, 73 Cal.App.2d 427, 436, 166 P.2d 595; Folger v. Richfield Oil Corp., supra, 80 Cal.App.2d 655, 660, 182 P.2d 337; Berton v. Cochran, supra, 81 Cal.App.2d 776, 781, 185 P.2d 349; Allin v. Snavely, 100 Cal.App.2d 411, 415, 224 P.2d 113.

As was said in Poncino v. Reid-Murdock & Co., supra, 136 Cal.App. at page 232, 28 P.2d at page 936: 'Like many other cases involving collisions between moving vehicles, the accident may be said to have happened within the twinkling of an eye after the first indication of danger. While the doctrine of last clear chance has been applied in certain exceptional cases involving collisions between moving vehicles, we are of the opinion that it should not be applied to the ordinary case in which the act creating the peril occurs practically simultaneously with the happening of the accident and in which neither party can fairly be said to have had a last clear chance thereafter to avoid the consequences. To apply the doctrine to such case...