Sparks v. Redinger , 44 Cal. 2d 121 ( 1955 )

SPENCE, J.

Plaintiffs were injured in a collision when their automobile, while making a left-hand turn at a highway intersection, was struck by an oncoming tractor, pulling two gravel-loaded trailers. Plaintiffs brought actions against Homen, owner of the tractor, and his employee, Redinger, the driver. Homen cross-complained against the plaintiff driver of the automobile, Charles K. Sparks, for damages to his equipment. All actions were consolidated for trial. The jury returned verdicts against all three plaintiffs on their complaints and a verdict in favor of Homen on his cross-complaint. Plaintiffs moved for a new trial. The court granted their motions on the sole ground that it had erred in failing to give plaintiffs’ proposed instruction on the doctrine of last clear chance. From such orders granting a new trial, defendants and cross-complainant appeal.

Where the trial court grants a new trial on the ground of error in the instructions, its conclusion, in the exercise of a wide discretion, will not ordinarily be disturbed. (Hunton v. California Portland Cement Co., 50 Cal.App.2d 684, 695 [123 P.2d 947]; Barnett v. Garrison, 93 Cal.App.2d 553, 557 [209 P.2d 426].) All presumptions favor the order as against the verdict (Mazzotta v. Los Angeles Ry. Corp., 25 Cal.2d 165, 169 [153 P.2d 338]), and the order will be affirmed if it may be sustained on any reasonable view of the record. (Ballard v. Pacific Greyhound Lines, 28 Cal.2d 357, 358 [170 P.2d 465].) But the trial court, no less than the appellate court, is expressly enjoined by article VI, section 4%, of our Constitution from granting a new trial for error of law unless such error is prejudicial. If it clearly appears that the error could not have affected the result of the trial, the court is bound to deny the motion. (Brown v. George Pepperdine Foundation, 23 Cal.2d 256, 262 [143 P.2d 929].) Here the record affirmatively shows that the failure to give the proposed last clear chance instruction did not constitute prejudicial error, and that the trial court erred in so holding. Accordingly, the orders granting plaintiffs a new trial must be reversed.

For the purpose of this discussion, it will be assumed that there was sufficient evidence relating to the happening of the accident to have warranted the giving of a last clear chance instruction. (Daniels v. City & County of San Francisco, 40 Cal.2d 614, 623 [255 P.2d 785]; Sills v. Los Angeles Transit Lines, 40 Cal.2d 630, 633 [255 P.2d 795].) Apart from the failure of the court to instruct on this doctrine, no complaint is made of any of the instructions. The jury was otherwise properly instructed on negligence, contributory negligence, and proximate cause.

The same main issues were presented by the pleadings with respect to plaintiffs’ complaints and defendant Homen’s cross-complaint. Under the instructions given, the jury could only have returned a verdict in favor of Homen on his cross-complaint in the event that it found that Redinger, the driver of Homen’s tractor, was not guilty of any negligence which proximately contributed to the happening of the accident. Thus, the jury was expressly instructed: “If you find that the cross-defendant Charles Sparks was negligent in the operation of his automobile and that such negligence proximately contributed to the damages sustained by the cross-complainant Homen, and that the defendant John Redinger was free from any negligence in the operation of the truck owned by cross-complainant Homen, then you must find a verdict in favor of cross-complainant Homen. However, any negligence on the part of cross-complainant’s employee, John Redinger, which proximately contributed to the accident in question will bar a recovery for the cross-complainant.”

In view of these instructiqns and the jury’s verdict in favor of Homen on the cross-complaint, it necessarily follows that the failure to give the last clear chance instruction did not prejudice plaintiffs’ cause, for the doctrine presupposes negligence on the part of both parties. (19 Cal.Jur., Negligence, § 80, pp. 651-652.) Accordingly, when the jury, as here, necessarily found that the defendant driver was not guilty of any negligence proximately contributing to the accident, there wras no place for the jury’s application of the last clear chance principles.

Plaintiffs argue that negligence “may consist of the failure to avoid an accident under the last clear chance doctrine”; and where the jury is not instructed on that subject in a proper case, it might find a party free from negligence, but if it were instructed on the subject it might find the same party guilty of negligence in that he had the last clear chance to avoid the accident and failed to exercise ordinary care to do so. However, plaintiffs’ argument is based upon the erroneous theory that the last clear chance doctrine changes the rules for the determination of the issue of negligence on the part of the respective parties. Such is not the ease, as those rules remain precisely the same; and in order to impose liability upon a party under the last clear chance doctrine, the jury must find not only that such party was guilty of negligence proximately contributing to the happening of the accident, but must also find that all other necessary elements of the last clear chance doctrine were present. The only purpose of the last clear chance doctrine is to relieve the injured party from the rigid application of the rule that contributory negligence will bar his recovery, when the circumstances are such that it may be said that such party’s negligence is a remote, rather than a proximate, cause of his injuries. (Girdner v. Union Oil Co., 216 Cal. 197, 201-204 [13 P.2d 915]; Center v. Yellow Cab Co., 216 Cal. 205, 207-208 [13 P.2d 918].) In other words, the last clear chance doctrine is but a “phase of the doctrine of proximate cause” in its relation to the negligence of the injured party who seeks to invoke it. (See annos.: 92 A.L.R. 47; 119 A.L.R. 1041; 171 A.L.R. 365.) It is therefore entirely clear that the last clear chance doctrine can have no possible application where it affirmatively appears that the party sought to be charged is not guilty of any negligence which proximately contributes to the happening of the accident.

The jury was fully instructed that plaintiffs were entitled to a verdict if it should find that the defendant driver was chargeable with any negligence in the operation of his truck that proximately contributed to plaintiffs’ injuries, and that “contributory negligence is of no importance unless it is a proximate cause of the accident.” (See Gillette v. City of San Francisco, 58 Cal.App.2d 434, 441 [136 P.2d 611]; Simon v. City & County of San Francisco, 79 Cal.App.2d 590, 600 [180 P.2d 393].) Moreover, the instructions were in fact more stringent than even the last clear chance doctrine in their application to the issue of Eedinger’s alleged negligence. They recited his duty to use ordinary care in the face of another’s negligence which “in the exercise of ordinary care would be apparent to him,” while the last clear chance instruction only applies in the event of actual knowledge of another’s perilous position. (Daniels v. City & County of San Francisco, supra, 40 Cal.2d 614, 619; Sills v. Los Angeles Transit Lines, supra, 40 Cal.2d 630, 637.) In view of such broad instructions and the jury’s return of a verdict in favor of the cross-complainant Homen, which only could be based on a finding that Redinger was not guilty of any negligence which proximately contributed to the accident, it is clear that the giving of the last clear chance instruction could not have changed the result, and the error, in failing to give it, was not prejudicial.

The present situation, in which the verdict for the cross-complainant Homen could only rest on a finding that his driver Redinger was free from negligence proximately contributing to the accident, is distinguishable from the cases cited by plaintiffs, where there was simply a verdict against a plaintiff on his complaint. (Daniels v. City & County of San Francisco, supra, 40 Cal.2d 614; Sills v. Los Angeles Transit Lines, supra, 40 Cal.2d 630.) In these cited cases the reviewing court could not tell whether the verdict in favor of defendant was based on a finding that defendant was not negligent or that plaintiff was negligent, in which latter event a last clear chance instruction might have avoided that factor as a proximate cause barring recovery. Accordingly, in those cases, the failure to instruct on the doctrine of last clear chance was deemed prejudicial. In the present case, there is no room for doubt as to the basis for the verdict, as the record affirmatively shows that it was necessarily based on the jury’s finding that defendant and cross-complainant Homen’s driver was not chargeable with any negligence proximately contributing to the happening of the accident.

The orders granting a new trial are reversed.

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