Selinsky v. Olsen

• Decision Date: 27 November 1951
• Citation: 237 P.2d 645,38 Cal.2d 102
• Court: California Supreme Court
• Parties: SELINSKY v. OLSEN. L. A. 22002

Page 645

237 P.2d 645

38 Cal.2d 102

SELINSKY v. OLSEN.

L. A. 22002.

Supreme Court of California

Nov. 27, 1951.

Crider, Runkle & Tilson and E. Spurgeon Rothrock, all of Los Angeles, for appellant.

Edward Mosk, Hollywood, for respondent.

CARTER, Justice.

A motion for a new trial after judgment for defendant on the ground of refusal to give an instruction on the last clear chance doctrine was granted to plaintiff and defendant appeals.

We must view the evidence most favorable to the contention that the doctrine is applicable in reviewing the order appealed from, since plaintiff is entitled to an instruction thereon if the evidence so viewed could establish the elements of the doctrine. Bonebrake v. McCormick, 35 Cal.2d 16, 215 P.2d 728; Alberding v. Pritchard, 97 Cal.App.2d 443, 217 P.2d 1012; 19 Cal.Jur. 745.

Plaintiff's car was parked heading north, parallel to the curb in the parking lane on the east side of Crenshaw Boulevard, a north-south street with four traffic lanes and two parking lanes. It was about a half a block north of 8th Street, which crosses Crenshaw. One car was parked five or six feet in front and another at least twentyfive feet behind his. Plaintiff testified that he entered his car, looked through the rear view mirrors, one inside and the other outside the car, and the only care he observed were westbound standing on 8th Street at the intersection waiting for the traffic signal to change. He pulled away from the curb and when the left front end of his car was protruding two feet into the outside traffic lane his motor stalled and his car stopped. About five seconds later, according to plaintiff, and a minute according to another witness, and while plaintiff's car was still stopped, defendant, proceeding north on the outside traffic lane on Crenshaw, collided with the left front of plaintiff's car. Defendant testified that he did not see plaintiff's car until he was fifteen feet behind the front of it, but admitted, and the evidence shows, that his view was unobstructed between the 8th Street intersection and plaintiff's car; that he was looking straight ahead and could have seen a car protruding as plaintiff's did for a distance of fifty feet to the south of it; and that he was traveling twenty to twentyfive miles per hour. He testified first that he tried to swerve to the left and later that he did not remember, and that he applied his brakes when he saw plaintiff's car.

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 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.

Defendant contends that the doctrine is not here applicable because plaintiff was aware of his dangerous position and could have seved himself by the exercise of ordinary care; that is, the first element is lacking. Further in that connection, the rule is asserted to be that there can be no recovery where the negligence of the injured party was contemporaneous, concurrent, continuing and contributory up to the moment of the impact. While the foregoing statement may be correct when properly applied, considerable confusion has arisen from it because it has been applied where the last clear chance doctrine has been unsuccessfully relied upon. In effect, it merely means that one of the elements of the doctrine is lacking; or that plaintiff's contributory negligence is a bar to his recovery. Girdner v. Union Oil Co., supra, 216 Cal. 197, 13 P.2d 915. It does not mean that the doctrine is unavailable when plaintiff is negligent up to the time of the collision, for his negligence is one of the factors that brings it into play. Girdner v. Union Oil Co., supra, 216 Cal. 197, 13 P.2d 915. It may be true that plaintiff was negligent in pulling away from the curb and was aware of his dangerous position, but when his car was protruding into the lane of traffic, his motor stalled, and the jury could infer that he was incapable of extricating himself by the exercise of ordinary care. Plaintiff's car was stopped from five seconds to a minute before the collision. There is a conflict on that point but it should have been left to the jury under the last chance doctrine instruction. We hold, therefore, that the first element finds support in the evidence.

The second factor is lacking, urges defendant, because there is no showing that defendant was aware of plaintiff's perilous position or knew he could not escape therefrom. That depends upon the view one takes of the evidence. It is true that defendant testified that he did not see plaintiff's car until he was directly behind it, when plaintiff drove his car into the line...