Silva v. Oishi

• Decision Date: 26 June 1970
• Docket Number: No. 4880,4880
• Citation: 52 Haw. 129,471 P.2d 524
• Parties: Frank I. SILVA v. Sadao OISHI.
• Court: Hawaii Supreme Court

Page 524

471 P.2d 524

52 Haw. 129

Frank I. SILVA v. Sadao OISHI.

No. 4880.

Supreme Court of Hawai'i.

June 26, 1970.

Syllabus by the Court

1. Comparative negligence applies only to claims accruing after July 14, 1969.

2. Maui Traffic Code § 10.9(1) (1965) is not applicable to a situation where two lanes are proceeding in the same direction and the two vehicles in question are in separate lanes.

3. There is no substantial evidence in this case to support an instruction on gross negligence.

4. The last clear chance doctrine applies only where all of the following elements are present: the injured party was in actual peril and unable to extricate himself, or was in immediate danger of getting into such peril to the actual knowledge of the other party, and there was reasonable opportunity thereafter for the defendant to have averted the injury by the exercise of ordinary care.

5. Last clear chance is not applicable in this case, because after the other party acquired actual knowledge of plaintiff's peril, he did not have a reasonable opportunity to avert the injury by the exercise of ordinary care.

Frank D Padgett, Padgett, Greeley, Marumoto & Akinaka, Honolulu, for appellant.

George R. Ariyoshi and Norman H. Suzuki, Honolulu, for respondent.

Before RICHARDSON, C.J., ABE and LEVINSON, JJ., MENOR, Circuit Judge, for MARUMOTO, J., disqualified, and KABUTAN, Circuit Judge, for KOBAYASHI, J., disqualified.

RICHARDSON, Chief Justice.

This case arose from a two-car collision on the highway between Kahului and Wailuku on the island of Maui. Plaintiff, Frank I. Silva, claimed damages for personal injuries proximately caused by the negligence of defendant, Sadao Oishi. Defendant denied that he had been negligent and also pleaded contributory negligence on the part of the plaintiff. Plaintiff responded that defendant had been grossly negligent; that defendant had violated Maui Traffic Code § 10.9(1) (1965) prohibiting following too closely; that the doctrine of last clear chance was applicable; and that the case should be submitted to the jury on the basis of a comparative negligence rule. The trial court refused to instruct the jury on any of these last four points, and plaintiff appeals on all four points, the jury having found for the defendant.

The facts of the case material to these issues are as follows: The collision occurred on a highway at a point where there were two lanes proceeding in each direction. Plaintiff and defendant were traveling in the same direction in different lanes. Plaintiff testified that he was driving in the left-hand lane at thirty to thirty-five miles per hour, and defendant was driving in the right-hand lane, some distance behind the plaintiff. The speed limit on this part of the highway was forty-five miles per hour. Plaintiff noticed that some distance ahead of him in his lane, there were workmen in the road, and that there were traffic cones closing off the left-hand lane. He looked in his rear-view mirror and saw the defendant's vehicle a good distance behind him. He put on his right-hand blinker signal, turned his attention to the road ahead, continued for another several hundred feet, and then without looking behind again, decelerated by removing his foot from the accelerator and moved over into the right-hand lane. The impact occurred almost immediately.

The defendant testified that he had been proceeding in the right-hand lane at forty-five to fifty miles per hour. Just before the accident, he had passed through some water that was spraying across the right-hand lane from a broken sprinkler head at the right-hand side of the roadway. He testified that he did not slow down or put on his windshield wipers at this point, but that his vision was not sufficiently impaired by the water to require him to do either of these things. Shortly after passing through the water, he saw the plaintiff move over in front of him. He slammed on his brakes and swerved to the right but was unable to avoid the collision. He testified that the plaintiff cut over suddenly and that there was nothing he could do to avoid the collision. Plaintiff testified that he had his blinker on and that the defendant crashed into him just as he completed moving into the right-hand lane.

We find that the trial court's rulings were correct on all four points and we affirm the judgment.

I. Comparative Negligence

Appellant contends that a comparative negligence standard should have been applied in this case. But in the case of Bissen v. Fujii, 51 Haw. 636, 466 P.2d 429 (1970), decided by this court after this appeal had been filed, we held that the rule of contributory negligence would continue until the time that the legislative enactment on comparative negligence took effect. Accordingly, comparative negligence applies only to claims accruing after July 14, 1969. Since this claim accrued before that date, it is not governed by the comparative negligence rule.

II. Applicability of Maui Traffic Code § 19.9(1) (1965)

We think that this contention of the appellant is wholly without merit since we find that the statute has no relevance to these facts as a matter of law. Where there are two lanes proceeding in the same direction, and there is one vehicle in each lane, neither can be following too closely within the meaning of the statute. These two vehicles were in separate lanes until almost the moment of impact.

III. Gross Negligence

We think that the trial court was correct in refusing to instruct the jury on gross negligence since we can see no substantial evidence in the record on which to base the instruction. We see no substantial evidence on which to base a conclusion that the defendant's conduct was willful or wanton, or that he recklessly disregarded the consequences that might follow from his behavior. There may have been ordinary negligence since the defendant could not remember when he first saw the plaintiff's vehicle, though conditions were good, and since there was evidence that defendant did not reduce his speed or turn on his wipers when he passed through the spray of water. The jury was instructed on ordinary negligence. We find no error in the failure to instruct on gross negligence.

IV. The Doctrine of Last Clear Chance

Appellant contends that the jury should have been instructed on the doctrine of last clear chance. That doctrine states that even where the injured party was negligent in the first instance, his negligence will not defeat recovery 'if it be shown that the defendant might have avoided the injury by the exercise of ordinary care and reasonable prudence.' Ferreira v. Honolulu R. T. and L, Co., 16 Haw. 615, 620 (1905). In order for the rule to apply, it must appear that either the plaintiff was in actual peril and unable to extricate himself, or in immediate danger of getting into a perilous situation to the knowledge of the defendant. Furthermore, there must have been a reasonable opportunity thereafter for the defendant to have averted the injury. Otherwise, the plaintiff's and the defendant's negligence being concurrent at the time of the injury, the plaintiff's negligence is regarded as a proximate cause of the injury and he cannot recover. Ferrage v. Honolulu R. T. and L. Co., 24 Haw. 87 (1917). The Ferrage case makes it clear that the defendant must have had actual knowledge of the plaintiff's peril in time to avert the accident. It is not enough that he should have known of plaintiff's peril in the exercise of ordinary care. Ferrage, supra at 92. Actual knowledge is required by the majority of American jurisdictions. ¹ The California cases exemplify this rule. In Daniels v. City and County of San Francisco, 40 Cal.2d 614, 255 P.2d 785 (1953), the main issue on appeal was whether the trial court had been correct in refusing to instruct the jury on the last clear chance doctrine. The supreme court said the question turned on a determination of whether there was substantial evidence in the record to support the theory. It then held that there was substantial evidence to support such an instruction, but noted that the instruction would be inapplicable in cases involving two fast-moving vehicles, where the act creating the peril occurs practically simultaneously with the happening of the accident, and neither party may be said to have had thereafter a last clear chance to avoid the consequences. The court further held that such an instruction would be improper where there was no evidence to show that the defendant knew of the plaintiff's danger in time to take some action to avoid the accident. Both of these factors, we think, are found in the present case.

Continuing the same theme, the case of Johnson v. Southwestern Engineering Co., 41 Cal.App.2d 623, 107 P.2d 417 (1940), held that it was reversible error to give an instruction on last clear chance unless all of the essential elements were present in the evidence. In that case, there was no evidence to show the defendant was aware of plaintiff's danger until it was too late to avoid the accident. As in the present case, it happened that 'the dangerous predicament which (plaintiff) was in was due solely to the fact that he was unaware of the situation-of which (defendant) had no knowledge.' Johnson, supra at 626, 107 P.2d at 418. The court continues:

After (defendant) had passed the center of the intersection, he had no reason to anticipate that (plaintiff) would continue without looking and no reason to anticipate that he would suddenly veer from his proper course to the wrong side of the road. In the exercise of ordinary care, (defendant) was not called upon to anticipate that (plaintiff) would violate the law by failing to maintain a lookout, by driving on the wrong side of the road and by failing to yield the right of way. Johnson, supra at 627, 107 P.2d at 419.

Although today's traffic conditions make it imperative for operators of motor vehicles to 'drive defensively', we do not think that any reasonable...