Sills v. Los Angeles Transit Lines

• Decision Date: 09 April 1953
• Citation: 40 Cal.2d 630,255 P.2d 795
• Court: California Supreme Court
• Parties: SILLS v. LOS ANGELES TRANSIT LINES et al. L. A. 22524

Page 795

255 P.2d 795

40 Cal.2d 630

SILLS v. LOS ANGELES TRANSIT LINES et al.

L. A. 22524.

Supreme Court of California

April 9, 1953.

Francis J. Gabel and Henry F. Walker, Los Angeles, for appellant.

Melvin L. R. Harris and Trippet, Newcomer, Yoakum & Thomas, Los Angeles, for respondents.

SPENCE, Justice.

Plaintiff sought damages for injuries suffered when an automobile which he was driving was struck by a streetcar owned by the defendant transit company and operated by defendant Parker. The complaint alleged that the proximate cause of the collision was the negligent operation of the streetcar by defendants. Such charge of negligence was denied by defendants in their respective answers, and each specifically pleaded contributory negligence. The jury returned a verdict in favor of defendants. From the judgment accordingly entered, plaintiff appeals.

The principal question presented is whether the trial court erred in refusing an instruction on the doctrine of the last clear chance. Each party is entitled to have his theory of the case submitted to the jury in accordance with the pleadings and proof, Cole v. Ridings, 95 Cal.App.2d 136, 144, 212 P.2d 597, and it is incumbent upon the trial court to instruct on all vital issues involved. Jaeger v. Chapman, 95 Cal.App.2d 520, 525, 213 P.2d 404. Viewing the evidence in the light 'most favorable to the contention that the (last clear chance) doctrine is applicable * * * since plaintiff is entitled to an instruction thereon if the evidence so viewed could establish the elements of the doctrine.' Selinsky v. Olsen, 38 Cal.2d 102, 103, 237 P.2d 645, 646; Hopkins v. Carter, 109 Cal.App.2d 912, 913, 241 P.2d 1063, we have concluded that the requested instruction should have been given, and that its refusal constituted prejudicial error.

The accident occurred on October 17, 1949, about 6:30 p. m. at the intersection of Pacific Boulevard and 52nd Street in Huntington Park. Pacific Boulevard runs north-south and 52nd Street, running east-west, crosses it at right angles. North of the intersection Pacific Boulevard is divided into three sections: an unpaved private right of way in the center where the streetcar tracks are laid; and pavement running parallel on either side for vehicular travel, the east side for northbound traffic and the west side for suothbound traffic. The private right of way ceases at 52nd Street, and south thereof Pacific Boulevard is paved from curb to curb with streetcar tracks in the center.

Plaintiff was driving his automobile southerly on Pacific Boulevard in the lane nearest the private right of way. As he neared 52nd Street, he started to make a left turn, eastward in the intersection. There was a northbound streetcar approaching the intersection at a speed of about 30 miles per hour. Plaintiff made a partial turn, stopping on the southbound track, with his automobile facing in a southeasterly direction and leaving the northbound track open. As plaintiff's automobile was so stopped awaiting the passage of the northbound streetcar, a southbound streetcar struck plaintiff's automobile at the left front door. The force of the impact knocked plaintiff's automobile about 60 feet from the point of collision and turned it in a southwesterly direction as it came to rest against the west curb of Pacific Boulevard some 20 feet south of 52nd Street.

Prior to the collision, the southbound streetcar had made its last stop about four blocks or some 1500 feet north of 52nd Street, and the motorman did not expect to make a stop at the latter crossing. The motorman testified that the streetcar was traveling about 20 miles per hour as he first observed plaintiff's automobile about 85 feet away starting to make its turn at the intersection, and that it was about 75 feet away when it stopped on the track. He further testified that upon seeing plaintiff's automobile turn, he applied the brakes and began ringing the streetcar bell. The street lights were burning, as were the lights on both plaintiff's automobile and the streetcar.

A passenger on the streetcar testified that she was seated on the right-hand side about three or four seats from the middle door; that she heard the motorman ring his bell extensively; that when he applied his brakes she looked to the front and saw the automobile stopped on the track; that the streetcar was about 75 or 80 feet north of the intersection and the stopped automobile was about 10 feet to the south thereof, or a total distance of some 85 to 90 feet from the streetcar. She further testified that the clanging of the bell was long and loud; that after hearing it, she leaned to the left, shifted her position to see past the people in front, and then saw the stopped automobile at the above-mentioned distance.

Plaintiff testified that as he started to turn left he looked to the north and saw the southbound streetcar about four blocks away. He then looked to the south and saw the northbound streetcar at a distance variously estimated from a half block to a block and a half away, and traveling about 30 miles per hour. He stopped to permit the northbound streetcar to pass. He continued looking from left to right. The next time he looked left he saw the southbound streetcar about one block away 'going terribly fast.' He thought of moving forward but was afraid he could not clear the track ahead of the approaching northbound streetcar, which was then only 15 or 20 feet away. He thought of moving backward and getting out but by that time the southbound streetcar was only 6 or 7 feet away, and then it struck him. He stated that there was no change in the speed of the southbound streetcar from the time he saw it until the impact. While he estimated that he was stopped on the track 'maybe 25 or 30 seconds' before the collision, he 'didn't clock it.' He could not state definitely whether there were automobiles behind him when he looked back, except that he did recall two lights, but 'where they were' he didn't know. As he finally looked to the left, seeing the 'big headlight' and the 'big front' of the southbound streetcar bearing down on him a few feet away, he knew that he had no time to get off the track and so he tried to slide across the seat but was caught in the impact.

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 in Daniels v. City and County of San Francisco, this day filed, Cal., 255 P.2d 785. But the question to be determined here is whether there is substantial evidence to meet the essential requirements for invocation of that doctrine. Defendants contend that the necessary evidentiary support is lacking for these reasons: that plaintiff was aware of his dangerous position on the streetcar track and could have saved himself by the exercise of ordinary care; that prior to the collision the motorman neither had knowledge of plaintiff's position of peril nor were the circumstances such that he should have realized the impending danger; and finally, that the motorman had no last clear chance to avoid the accident by the exercise of ordinary care. However, the record shows that these matters involve factual considerations, as the evidence most favorable to plaintiff's theory, if believed by the jury, would have warranted the application of the last clear chance doctrine. Girdner v. Union Oil Co., 216 Cal. 197, 199, 13 P.2d 915; Hopkins v. Carter, supra, 109 Cal.App.2d 912, 915, 241 P.2d 1063; also Galbraith v. Thompson, 108 Cal.App.2d 617, 622-623, 239 P.2d 468.

Concededly, plaintiff by reason of his own negligence found himself in a position of danger on the track in front of the approaching streetcar, but there arises the question of his ability to escape from his perilous predicament. Defendants cite plaintiff's testimony that the streetcar was four blocks away as he stopped on the track and remained there 25 to 30 seconds prior to the collision, that the motor of his automobile was running as it stood in second gear, and that a reasonable means of escape was then open to him by simply backing off the track. However, plaintiff was clearly only hazarding a guess as to the duration of his stop, and other testimony indicated a considerably shorter time interval. It was for the jury to determine the weight to be accorded to the testimony of the various witnesses and to reconcile, if possible, any inconsistencies in the time, speed and distance estimates in their factual accounts. Kuhn v. Gottfried, 103 Cal.App.2d 80, 84, 229 P.2d 137.

As to the suggested avenue of escape through backing his automobile off of the track, plaintiff could not state definitely whether there was any traffic behind him which would have precluded such move but he did testify that as he thought of 'backing and getting out,' he saw the oncoming streetcar only 6 or 7 feet away, and then it struck him. As has been said: 'It is always easy after an accident to see how it could have been avoided, but a man's duty before the calamity is not measured by such ex post facto information.' Harrington v. Los Angeles Ry. Co., 140 Cal. 514, 521, 74 P. 15, 17, 63 L.R.A. 238. A person in impending peril, where immediate action is necessary to avoid it, is not required to exercise all that presence of mind which is normally exacted of a careful and prudent person under ordinary circumstances, nor to show that his inability to escape from the threatened danger was a physical impossibility. Here the conflicting testimony relating to the duration of plaintiff's stop and the conflicting testimony relating to the position of the oncoming streetcar at the time that plaintiff made the stop were matters for the jury to consider in determining the reasonableness of plaintiff's conduct. Selinsky v. Olsen, supra, 38 Cal.2d 102, 105, 237 P.2d 645.

Turning to the question of the motorman's awareness of plaintiff's dangerous position on the...