Opinion
8-11-1955
Arcadio MORENO, Plaintiff and Respondent, v. LOS ANGELES TRANSIT LINES, a corporation, and Harold Franzlick, Defendants and Appellants. Civ. 20542.
Melvin L. R. Harris, Henry R. Thomas, and Henry F. Walker, Los Angeles, for appellants. Sampson & Dryden, Patrick D. Horgan, and Jacob Swartz, Los Angeles, for respondent.
Arcadio MORENO, Plaintiff and Respondent,
v.
LOS ANGELES TRANSIT LINES, a corporation, and Harold Franzlick, Defendants and Appellants.
Aug. 11, 1955.
Hearing Granted Oct. 5, 1955.
Melvin L. R. Harris, Henry R. Thomas, and Henry F. Walker, Los Angeles, for appellants.
Sampson & Dryden, Patrick D. Horgan, and Jacob Swartz, Los Angeles, for respondent.
ASHBURN, Justice pro tem.
Personal injury action. Verdict for plaintiff. Defendants Los Angeles Transit Lines and Harold Franzlick, as appellants, made no claim of excessive damages. Counsel rely primarily upon a claim that it was error to instruct the jury upon last clear chance, and alternatively, that the instruction given erroneously stated that doctrine.
It is necessary for the court to inform the jury on that matter 'when, on any valid theory, there is substantial evidence to support the application of that principle. * * * if the facts be such that the doctrine may be applied, it is the duty of a trial judge to submit it to a jury by proper instructions * * *.' Wright v. Los Angeles Ry. Corp., 14 Cal.2d 168, 179, 93 P.2d 135, 140, and the judge must view the evidence 'in the light most favorable to the application of the doctrine and indulging every reasonable inference in support thereof'. Daniels v. City & County of San Francisco, 40 Cal.2d 614, 617, 255 P.2d 785, 787.
The accident occurred at the intersection of Vermont Avenue and 110th Street in the City of Los Angeles. In that area Vermont, which runs north and sough, has two roadways with defendant's private right of way intervening between them. The east roadway is for northbound traffic and the west one for southbound. Likewise the east car track carries cars going north and the west track is for those traveling south. Plaintiff's automobile, eastbound on 110th Street, was struck by defendant's northbound street car.
The only witnesses to the immediate facts of the accident were plaintiff, defendant Franzlick (the motorman), Mrs. Ella Lowry (a passenger on the street car) and Frank Simpson, who was leaving a cafe on the west side of Vermont and north of 110th Street. The accident occurred at or near the intersection of the northbound or east track with the center line of 110th Street. Plaintiff stopped at the stop sign on the west side of Vermont, waited for four or five southbound automobiles to pass; then started forward in low gear; he testified that when he had almost cleared the west curb line and was some 75 feet from the point of impact, he looked to the right or south and saw the northbound car, which later struck his automobile; that it was then about 325 feet from the intersection; that he then looked left or north for traffic, automobile or street car, and saw none except a second group of southbound automobiles about 150 feet away; that he then looked to the south again and saw the street car when the front of his automobile was about 50 feet from the point of accident. He placed the street car some 255 feet to the south at that time (respondent's counsel says 225 feet). At or about that 50 foot distance he shifted into second gear, the car having a standard gear shift. His own speed was fixed by him at 12 miles or less, never more than 12. Plaintiff never made any estimate of the speed of the street car, either on the grounds or in court but did say that it was going a little more slowly when seen the second time. At all times before and after each of the occasions of looking at the street car, he had his head turned to the north and was looking that way though there was no traffic of any kind approaching from that direction except the group of automobiles which he had seen about 150 feet away. The motorman said that when first seen by him the plaintiff was looking to the north and continued to do so; that after first seeing plaintiff he continued to watch him. Plaintiff further testified that when he arrived practically at the northbound track he looked again to the right and the street car was almost upon him, some 15 feet away. His car was hit in the center and back of center. Plaintiff swore that he heard no gong or bell or other noise from the street car. The motorman Franzlick testified that he began to ring his gong as soon as he saw plaintiff, when the street car was 80-90 feet from the impact, and continued to do so until the collision occurred; that he also began at once to stop his car, began this as soon as he was plaintiff. On his deposition Franzlick testified he saw plaintiff when 180 feet, or three street-car lengths, from the point of impact; later he changed the deposition to say 180 feet from the automobile. No witness placed the speed of the street car at more than 25 miles at any time. At the trial Franzlick testified that he first saw plaintiff's automobile when the street car was a few feet south of the safety zone, some 80 to 90 feet from the point of impact; that he was then going about 20 miles an hour; that he saw plaintiff traveling at 20 to 25 miles and looking north, plaintiff being 80 to 90 feet from ultimate collision; that he, Franzlick, then began to ring his gong vigorously and applied his brake in an immediate and continuous effort to stop the car. Also that plaintiff slowed his auto slightly and then picked up speed at once (this may have been done in the process of shifting gears).
The passenger, Mrs. Ella Lowry, corroborated this version to a considerable extent. She was in the front section of the car, heard the bell start to ring fact when the car was near the south end of the loading zone, observed that the brakes were applied at the same time; that the car was then going only 20 miles an hour and its speed was down to 15 miles at the time of accident. She also said the automobile was increasing speed and going as much as 30 miles an hour.
After rehearing we have again concluded that this cause must be reversed, and we now place our ruling upon two grounds, (1) that the instruction which the court gave upon the doctrine of last clear chance was erroneous and (2) that under the evidence in this case it was error to give any instruction on last clear chance.
The doctrine of last clear chance is stated in Girdner v. Union Oil Co., 216 Cal. 197, 202, 13 P.2d 915, 917: 'The necessary elements, as deduced from the well-considered cases, may be stated in substance as follows: 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.' This language has been repeated so often in the decisions as to become a classic definition of the rule. The crucial part of it in the case at bar is this: '* * * a position of danger from which he cannot escape by the exercise of ordinary care * * * 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.'
The entire instruction as given (BAJI 205) reads: 'There has grown up in our law a certain reasoning process that we sometimes call to our aid in analyzing the facts of an accident case, and which is known as the doctrine of last clear chance. It is permissible to use the doctrine only after we first find, and you may not use it unless and until you first shall have found, that in the events leading up to the accident in question, both the plaintiff and defendant were negligent.
'The doctrine of last clear chance may be invoked if, and only if, you find from the evidence that these six facts existed:
'First: That plaintiff, by his own negligence, got himself into a position of danger.
'Second: That, thereupon, either it was physically impossible for him through the exercise of ordinary care to escape from the danger, or he was totally unaware of impending danger in his position.
'Third: That the defendant had actual knowledge of plaintiff's perilous situation
'Fourth: That it appeared to the defendant, or would have appeared to him in the exercise of ordinary care, that plaintiff either was unaware of the danger impending in the situation or was unable to escape therefrom through the exercise of ordinary care.
'Fifth: That after the defendant acquired actual knowledge of plaintiff's perilous situation he had a clear opportunity to avoid the accident and could have done so by exercising ordinary care.
'Sixth: That the defendant did not avail himself of that opportunity, but by negligent conduct proximately caused the accident.
'If all the conditions just mentioned are found by you to have existed with respect to the accident in question, then you must find against the defense of contributory negligence, because under such conditions the law holds the defendant liable for any injury suffered by the plaintiff and proximately resulting from the accident, despite the negligence of the plaintiff.'
Appellants' attack upon the instruction which was given centers upon the stated condition 'Fifth: That after the defendant acquired actual knowledge of plaintiff's perilous situation, he had a clear opportunity to avoid the accident and could have done so by exercising ordinary care.'
Appellants' point is that 'defendant is not called upon or required to take steps in such case until the time arrives when he realizes or ought to realize plaintiff's inability to escape' and that 'the given instruction requires defendant to have taken such measures upon acquiring knowledge of plaintiff's position * * * instead of as of the time defendant realizes or ought to realize plaintiff's inability or unawareness.' In other words, the argument is that clause Third requires actual knowledge of plaintiff's position and clauses Fifth and Sixth require defendant to avoid the accident if he has a clear opportunity to do so after acquiring knowledge of that position, whereas the law requires such activity on defendants' part to begin with actual or imputed realization of the fact that plaintiff cannot extricate himself from the existing danger by the use of due care. The authorities support the claim that defendants' duty to act arises at this later time, if it be later in fact. Starck v. Pacific Electric Ry. Co., 172 Cal. 277, 283-284, 156 P. 51, L.R.A.1916E, 58; Johnson v. Southwestern Eng. Co., 41 Cal.App.2d 623, 626, 107 P.2d 417; Palmer v. Tschudy, 191 Cal. 696, 700, 218 P. 36; Daniels v. City & County of San Francisco, supra, 40 Cal.2d 614, 620-621, 255 P.2d 785; Sills v. Los Angeles Transit Lines, 40 Cal.2d 630, 637, 255 P.2d 795; see also, Rest. of Torts, § 480, comment (b) on page 1258; 21 Cal.L.Rev. p. 261. In Doran v. City & County of San Francisco, 44 Cal.2d 477, at page 488, 283 P.2d 1, at page 8, the court says: 'What then is the main factor which may make plaintiff's negligence, in the eyes of the law, a remote cause rather than a proximate cause of the accident? It is obviously the existence of some such appreciable interval after the time that plaintiff has reached a state of helplessness as to enable defendant to gain actual knowledge of plaintiff's state of helplessness, and to have a last clear chance to avoid the accident.'
A motorman, whose inability to deviate from the path marked by the rails gives him a qualified right of way, Scott v. San Bernardino Valley etc. Co., 152 Cal. 604, 610, 93 P. 677; McHugh v. Market St. Ry. Co., 29 Cal.App.2d 737, 742, 85 P.2d 467, is entitled to assume that a motorist who is headed across his path will exercise ordinary care and will stop before it is too late to avert a collision; not until he is or should be alerted to the probability of the motorist failing to yield is he required to begin the process of stopping his car, Thompson v. Los Angeles, etc., Ry. Co., 165 Cal. 748, 755, 134 P. 709; Rasmussen v. Fresno Traction Co., 15 Cal.App.2d 356, 367, 59 P.2d 617; the mere fact that the driver of the automobile is looking in another direction is not necessarily enough to apprize him of the probability of a collision, Rodabaugh v. Tekus, 39 Cal.2d 290, 294, 246 P.2d 663; the motorman is not required at all times to make a correct analysis of the situation, to know the distance and speed of the automobile and the driver's intentions; until he is aware, as any ordinarily prudent man in his position would be waare, of the fact that the automobilist is in a position from which he cannot extricate himself through use of due care, the motorman may assume that he will do so; when that knowledge is acquired in fact or imputed to him because he should know it, he must begin to avail himself of a last clear chance, if there be one.
Clause First of the instruction presupposes that plaintiff's negligence has put him in a position of danger; Second, that he is unable to escape that danger because of physical impossibility or unawareness of the danger; Third requires that defendant have 'actual knowledge of plaintiff's perilous situation.' First and Second require plaintiff to be in a predicament from which he cannot escape by his own efforts. Third requires actual knowledge on defendant's part that plaintiff is in that particular position, but under the authorities actual knowledge is requisite only with respect to plaintiff's position, not his inability to rescue himself. On that latter phase of the situation actual knowledge is not necessary. In the language of Girdner v. Union Oil Co., supra, 216 Cal. 197, 202, 13 P.2d 915, 917, it is requisite that defendant know 'or in the exercise of ordinary care should know, that plaintiff cannot escape from such situation.' If clause Third were intended to mean that defendant must have actual knowledge of the factors set forth in both First and Second it would be erroneous. But it is not so intended for it is immediately followed by Fourth which sets out the requirement of actual or imputed knowledge of plaintiff's inability to extricate himself from danger. The structure of the instruction matches First with Third and Second with Fourth. Then Fifth and Sixth require defendant to act to save plaintiff from himself immediately after the defendant acquires 'actual knowledge of plaintiff's perilous situation.' This phrase of Fifth is quoted from Third and applies to plaintiff's dangerous position, rather than a realization, actual or implied, of his inability to extricate himself. It allows no time or opportunity for the realization covered by Fourth and accorded defendant by the applicable authorities above cited. Paragraph Fifth should read: 'That after the defendant acquired actual knowledge of plaintiff's perilous situation and knew or in the exercise of ordinary care should have known that plaintiff was unable to escape the peril through exercise of ordinary care on his own part, defendant had a clear opportunity to avoid the accident and could have done so exercising ordinary care.'
Respondent has relied upon the asserted fact of approval of a similar instruction in Gillette v. San Francisco, 41 Cal.App.2d 758, 765, 107 P.2d 627. The one there given bears number 56 in the record; it is referred to in the briefs as BAJI 111. An examination of the briefs shows that the differences between BAJI 205 and the one there discussed are such that the Gillette ruling cannot constitute a controlling precedent here. Specifically paragraph Fifth of the instruction there given read: 'That the defendant had a clear opportunity to avoid the accident and could have done so by exercising ordinary care.' It did not contain the words 'after the defendant acquired actual knowledge of plaintiff's perilous situation,' the phrase that appellants attack here.
In their petition for rehearing counsel for respondent, for the first time, urge that the following cases have held BAJI 205 to be a correct instruction, viz.: Peterson v. Burkhalter, 38 Cal.2d 107, 110, 237 P.2d 977; Daniels v. City & County of San Francisco, supra, 40 Cal.2d 614, 255 P.2d 785; Root v. Pacific Greyhound Lines, 84 Cal.App.2d 135, 136, 137, 190 P.2d 48; Cole v. Ridings, 95 Cal.App.2d 136, 142, 212 P.2d 597. To this list may be added Alberding v. Pritchard, 97 Cal.App.2d 443, 444-445, 217 P.2d 1012, which is cited in the Daniels case. Examination of the record in those cases discloses that the point raised on this appeal was not presented, and hence not decided, in any of them. None of the cases just mentioned serves as a precedent upon the question here raised as to the alleged error in paragraph Fifth of 205; this for the reason that that question was not presented to the court, discussed by it, or actually decided. 'A decision cannot be regarded as authority for a legal proposition which upon the facts of the case might have been, but in fact, was not raised or decided.' Wrenn v. Sutton, 65 Cal.App.2d Supp. 823, 827, 150 P.2d 589, 591; cf. Cate v. Fresno Traction Co., 213 Cal. 190, 203, 2 P.2d 364; Estate of Pendell, 216 Cal. 384, 386, 14 P.2d 506.
The instruction given at bar was erroneous.
In considering the question of whether any last clear chance instruction was permissible at bar, counsel stress the matter of unawareness and appellants cite authorities to the effect that 'the theory that he (plaintiff) was oblivious to his danger because he did not again look toward the street car cannot be invoked to show his inability to escape * * *.' Rasmussen v. Fresno Traction Co., supra, 15 Cal.App.2d 356, 369, 59 P.2d 617, 623. Counsel also invoke this language of Palmer v. Tschudy, supra, 191 Cal. 696, 700, 218 P. 36, 38: 'The rule * * * applies equally when she is wholly unaware of the danger and for that reason unable to escape it. But the rule also requires that if she is aware of the danger, or becomes aware of it, she must thereafter exercise ordinary care for her own protection. If, being aware of the danger and able to escape it by exercising ordinary care, she neglects to do so, she cannot invoke the last clear chance rule to place the burden of the resulting loss upon the other party.'
In the recent decision of Doran v. City & County of San Francisco, 44 Cal.2d 477, 283 P.2d 1, 5, the same thought is voiced as follows: 'Total unawareness of danger, as contemplated by the doctrine, does not exist where the injured party is fully aware of the approach of an oncoming vehicle up to the instant before the collision and then shifts his attention to look in some other direction while proceeding directly into its path.'
The facts in our case do not afford plaintiff the benefit of the 'unawareness' phase of the rule. Plaintiff twice looked and saw the approaching street car, which he knew could not turn aside for him; he made no estimate of its speed, gave no testimony that he thought he had time to cross ahead of it; devoted his attention to the north, from which direction no threat of danger was approaching; gave no explanation of this; claimed no forgetfulness or other lack of appreciation of the threat of danger from defendant's car; and he could have stopped his car in safety after seeing the street car the first time. Viewed only from the standpoint of unawareness it can only be said that plaintiff's own negligence was of a continuing nature which constituted one of the proximate causes of the accident. Lest it be thought that this ruling is contrary to that of Peterson v. Burkhalter, supra, 38 Cal.2d 107, 237 P.2d 977, we call attention to the fact that that opinion proceeds upon the assumption that, in point of fact, the plaintiff was unaware of his peril at all pertinent times.
Next arises the question of whether, within the last clear chance doctrine, plaintiff was in danger from which he could not extricate himself by exercise of ordinary care. Of course, plaintiff '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.' Rodabaugh v. Tekus, supra, 39 Cal.2d 290, 294, 246 P.2d 663, 665. 'Plaintiffs were not in a position of danger nor in a state of helplessness, within the meaning of the doctrine, until they had reached a point where they could no longer escape by the exercise of ordinary care.' Doran v. City & County of San Francisco, supra, 44 Cal.2d 477, 283 P.2d 1, 8.
According to plaintiff's testimony he saw the street car three times before the actual impact, and he never traveled over 12 miles an hour. First the street car was seen some 300 to 325 feet south of point of impact when he was 75 feet to the west of it. At 12 miles an hour the automobile could be brought to a stop in 23-25 feet, and hence plaintiff was in a position to save himself by the slightest exercise of care. Plaintiff says he next saw the street car some 255 feet away from impact and he was then 50 feet back of that point; going at the 12 mile speed he could stop in 23-25 feet and hence was in no danger from which he could not easily save himself. When he last saw the street car, according to plaintiff, he was just entering the northbound car track and the street car was about 15 feet away. It could not stop in any such distance (at 15 miles an hour it would take 66 feet to make an emergency stop), and hence there was no last clear chance.
According to motorman Franzlick, he first saw the automobile when it was 80-90 feet away from impact; it was going 20-25 miles, then less, then more, and back up to 20-25 miles. He says the street car was traveling at the same rate, 20-25 miles, and was likewise 80-90 feet from point of impact. At 20 miles it would take him 110 feet to make an emergency stop. There was no last or clear or any chance for him to avoid an accident under these circumstances. But plaintiff who was back 80-90 feet and traveling at 20-25 miles could stop in ample time,--in 40 feet at 20 miles, or 64 feet at 25 miles. He was in no peril then. Mrs. Lowry's testimony is substantially the same as Franzlick's, though not so detailed. Simpson, who was in front of the cafe, saw very little, but he did say the street car and the automobile were traveling at about the same rate of speed.
When his deposition was taken Franzlick said in one place that he saw plaintiff's auto when the street car was about 180 feet from point of impact. But he has repeatedly asserted that the street car was going 20 miles an hour, the auto 20-25 miles, and that it was then 80-90 feet back of point of collision. The uncontradicted expert testimony establishes that the automobile when traveling at 25 miles could be stopped in 64 feet. In this factual situation plaintiff was in no danger and there was no reason for the motorman then to begin the process of stopping his car. At the trial Franzlick (who had previously changed the deposition) testified that he first saw plaintiff when the street car was 180 feet from the automobile (not point of impact), and that plaintiff was then 80-90 feet away from the northbound track. Plaintiff was in no danger as he could stop in 64 feet, and there was no occasion for Franzlick then to stop his car. The ringing of the going under those circumstances (if it did begin there) would be only a warning to turn the head and exercise common care. If Franzlick had then begun to stop the car, being about 155 feet south of the crossing and going 25 miles an hour, he would just about have made it with an emergency application of the brakes, and the time consumed would be 4 seconds. But plaintiff, going 20 miles, would in that 4 seconds have crossed the track and gone some 30 feet beyond it.
Respondent's counsel argue for a last clear chance upon the basis of a street car speed of 15 miles at the time the motorman first saw plaintiff; Franzlick did give this figure in his deposition; counsel are not explicit as to plaintiff's then location, but Franzlick said he first saw him at a point which scales on the map 90 feet west of the northbound track. The expert witness did testify that an emergency stop could be made by the street car in 66 feet if it was going 15 miles when the brake was applied; and Franzlick said he saw plaintiff when the street car was 80-90 feet from the point of impact, and he began the stopping process at once. If so, and if plaintiff was going 12 miles, as he says, he had ample time to stop (23-25 feet) and hence was not in the required position of peril; if plaintiff was traveling 25 miles (twice his own estimate) and was 80-90 feet west of the track he could stop in 64 feet and again he was not in peril except of his own making through failing to stop or slow down.
We have endeavored to view the facts in every light permissible under the evidence, but we call attention to the fact that any supposition that plaintiff's speed was in excess of about 12 miles per hour would be opposed not only to plaintiff's own testimony but also to that of his expert witness who testified that the maximum speed that could have been attained in 94 feet by plaintiff's car, a 1948 model, was 23 or 24 miles per hour, or a lesser speed, which he could not estimate, if plaintiff shifted gears. Plaintiff did shift gears and there was no evidence whatever that he pushed his throttle to the floorboards and kept it there during the crossing. Moreover, at an assumed speed of anything like 20 or 25 miles per hour he would have cleared the tracks in safety.
We have concluded that this case falls within the ambit of Rodabaugh v. Tekus, supra, 39 Cal.2d 290, 246 P.2d 663. The following quotations are pertinent. '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. * * * It has been frequently stated that the last clear chance doctrine is ordinarily inapplicable under such conditions. * * * As was said in Poncino v. Reid-Murdock & Co., supra, at 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 cases would be equivalent to denying the existence of the general rule which makes contributory neglience a bar to recovery.'' 39 Cal.2d at pages 294-295, 246 P.2d at pages 665-666.
We deem it unprofitable and therefore do not pause to analogize or differentiate the factual situations involved in Peterson v. Burkhalter, supra, 38 Cal.2d 107, 237 P.2d 977; Daniels v. City & County of San Francisco, supra, 40 Cal.2d 614, 617, 255 P.2d 785; Sills v. Los Angeles Transit Lines, supra, 40 Cal.2d 630, 255 P.2d 795; Rodabaugh v. Tekus, supra, 39 Cal.2d 290, 294, 246 P.2d 663; Sparks v. Redinger, 44 Cal.2d 121, 279 P.2d 971; Doran v. City & County of San Francisco, supra, 44 Cal.2d 485, 283 P.2d 6. The principles there applied are consistent with the views herein expressed; and it is an unsatisfactory and misleading process to try to reason by analogy from one set of facts to another.
We have again concluded, upon both grounds hereinbefore discussed, that grave and reversible error is presented by the record of this case.
The judgment is reversed.
SHINN, P. J., and VALLEE, J., concur. --------------- * Dismissed pursuant to stipulation April 4, 1956. 1 Cf. Coombes v. Getz, 217 Cal. 320, 329, 18 P.2d 939; Bank of Italy, etc., Ass'n v. Bentley, 217 Cal. 644, 650, 20 P.2d 940.