Rodabaugh v. Tekus , 39 Cal. 2d 290 ( 1952 )

SPENCE, J.

Plaintiffs, the widow and adult sons of Andrew C. 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 eyewitnesses were defendant and his passenger. Plaintiffs called defendant under section 2055 of the Code of Civil Procedure, and they base 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 Street, 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 ear; 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 ear in approximately 60 feet. Defendant did not turn to the right or left before the impact, and his car struck decedent’s ear 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 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., 216 Cal. 197, 202 [13 P.2d 915], and were recently reiterated in Selinsky v. Olsen, 38 Cal.2d 102, 104 [237 P.2d 645], and Peterson v. Burkhalter, 38 Cal.2d 107, 109 [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 addition, 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]; De Vore 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, 435; also, Young v. Southern Pac. 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]; Dailey v. Williams, supra, 73 Cal.App.2d 427, 436; Folger v. Richfield Oil Corp., supra, 80 Cal.App.2d 655, 660; Berton v. Cochran, supra, 81 Cal.App.2d 776, 781; Allin v. Snavely, 100 Cal.App.2d 411, 415 [224 P.2d 113].)

As was said in Poncino v. Reid-Murdock & Co., supra, at page 232: “Like many other eases 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 negligence a bar to recovery.”

Certain phases of plaintiffs’ argument should be mentioned. Plaintiffs rely heavily upon defendant’s testimony to the effect that he could have stopped within a distance of 60 feet while traveling at 40 miles per hour. There is no other testimony in the record relating to the distance required to stop a car by the application of brakes. As plaintiffs accept this testimony, it appears therefrom that decedent did not reach a point of danger from which he could not extricate himself until he was within 60 feet of the path of defendant’s car; and that defendant could assume that decedent would obey the stop sign until decedent had arrived at a point within such distance of 60 feet. A vehicle traveling at a speed of 40 miles per hour travels approximately 60 feet per second, and plaintiffs do not dispute the fact that defendant’s total time for reaction and effective action after discovering decedent’s perilous situation was necessarily somewhere between 1¼ and 1¾ seconds. Plaintiffs’ calculations do not sustain their position. As was said in St. Louis S.W. Ry. Co. v. Simpson, 286 U.S. 346, at page 351 [52 S.Ct. 520, 76 L.Ed. 1152] : “Calculations so nice are unavailing to prove anything except the unity of the whole transaction. The several acts of negligence were too closely welded together in time as well as in quality to be viewed as independent.”

In Poncino v. Reid-Murdock & Co., supra, 136 Cal. App. 223, at page 227, it was further said: “In other words, it is not enough to relieve a plaintiff of his own negligence that the defendant may have had a chance to avoid the accident, but defendant must have had the last chance and also had a clear chance to do so by the exercise of ordinary care. That he should have had the last chance implies that his chance to avoid the accident must have come later in point of time than any similar chance on the part of the injured person. That he should have had a clear chance implies that he must have had more than a bare possible chance to avoid an unexpected peril created practically simultaneously with the happening of the accident by the negligence of the injured party.”

Plaintiffs also argue that defendant acted negligently in not turning to the right or left to avoid the collision. We have heretofore assumed, solely for the purpose of this discussion, that there was sufficient evidence to sustain a finding of some negligence on the part of defendant. As above indicated, this does not suffice to bring into operation the last clear chance doctrine. In passing it may be stated, however, that defendant was admittedly traveling on a narrow through road 20 feet in width with soft shoulders on either side; that he was approaching a narrow, intersecting road with ditches on either side thereof; and that decedent was admittedly negligent in not obeying the stop sign and in proceeding directly across defendant’s path without diminishing his speed of 35 to 40 miles per hour. Plaintiffs fail to indicate in which direction they believe that defendant should have attempted to turn under these circumstances. As we view the evidence on which plaintiffs rely, it was sufficient to warrant the application of the imminent peril doctrine in favor of defendant (Peterson v. Devine, 68 Cal.App.2d 387, 392-393 [156 P.2d 936]; Wilkerson v. Brown, 84 Cal.App.2d 401, 408 [190 P.2d 958]), but was insufficient to warrant the application of the last clear chance doctrine in favor of plaintiffs.

Plaintiffs cite and rely upon certain decisions, in addition to those heretofore mentioned, in which the last clear chance doctrine has been applied. (Bonebrake v. McCormick, 35 Cal.2d 16 [215 P.2d 728]; Center v. Yellow Cab Co., 216 Cal. 205 [13 P.2d 918]; Bragg v. Smith, 87 Cal.App.2d 11 [195 P.2d 546] ; Root v. Pacific Greyhound Lines, 84 Cal.App.2d 135 [190 P.2d 48] ; Gillette v. City of San Francisco, 58 Cal.App.2d 434 [136 P.2d 611]; Yates v. Morotti, 120 Cal.App. 710 [8 P.2d 519].) Many of these cases have presented close questions concerning the sufficiency of the evidence to warrant the application of the doctrine, but they are all distinguishable on their facts. In none of the cited authorities was a through highway involved nor was there such a relation between the time, distance and speed factors as is found in the present case. The language used in Bagwill v. Pacific Electric R. Co., 90 Cal.App. 114, at page 121 [265 P. 517], is singularly applicable here: “Certainly the doctrine of last clear chance never meant a splitting of seconds when emergencies arise. ... We are not to tear down the facts of a case and rebuild the same so that, by a trimming down and tight-fitting operation, something can be constructed upon which may be fastened the claim of last clear chance. The words mean exactly as they indicate, namely, last clear chance, not possible chance.”

We therefore conclude that the record is devoid of substantial evidence to sustain the application of the last clear chance doctrine, and that it was error for the trial court to instruct the jury with respect thereto. (Wallis v. Southern Pac. Co., 184 Cal. 662, 672 [195 P. 408, 15 A.L.R. 117]; Palmer v. Tschudy, 191 Cal. 696, 700-701 [218 P. 36].) The trial court therefore properly granted defendant’s motion for judgment notwithstanding the verdict.

The judgment is affirmed.

Gibson, C. J., Shenk, J., Edmonds, J., and Traynor, J., concurred.