Folger v. Richfield Oil Corp.

The question for decision is whether the court erred in granting plaintiff’s motion for a new trial by reason of its failure to instruct the jury with respect to the doctrine of the last clear chance.

Immediately prior to the collision plaintiff and Ann Provencher, his fiancée who subsequently became Mrs. Folger, proceeded northward on Cherry Avenue in separate automobiles. By arrangement he led the way to assure her safety through the fog. He kept her within his vision by watching her headlights through his rearview mirror. If they disappeared he slowed down until she came near. Having proceeded north on Cherry Avenue they arrived at Wardlow Road which extends east and west. Plaintiff was familiar with the intersection from his long residence in that vicinity. He testified that by reason of the fog he could see the headlights of passing cars at no greater distance than 75 feet and he was guided solely by the white stripe in the center of the avenue along which he proceeded to travel at about the same speed until he collided with the truck. In the center of Cherry is a concrete island which extends south from the south line of Wardlow Road, a distance of about 75 feet. At the south end of the island amber blinker lights flicker in the darkness as an aid to the motorist. Plaintiff observed them when 50 feet away, swerved as a signal to Miss Provencher but returned to the white stripe. At the center of Wardlow Road his sedan struck the rear 2 feet of the truck which had almost completed a left turn from its westerly course into Cherry Avenue. So violent was the collision that it destroyed the front end of the sedan, while the rear end of the truck was knocked about 6 feet, the two men in the driver’s cab were jostled, and their 6,000 pounds of tools were

Defendant Raines was driver of the truck. He and his companion, foreman Hahn, both testified that they could see headlights about one thousand feet distant. They were enclosed in the cab but the windshield wiper was in action. The headlights, the tail lights and two clearance lights were lighted. A street light over the intersection illuminated the area. When he arrived at Cherry Avenue Raines stopped long enough to allow several automobiles to pass, going in both directions. Having seen the lights of plaintiff’s sedan over 400 feet to the south on the avenue he started in compound low and arrived at the center going at a speed of from 3 to 5 miles an hour. He had almost completed the turn when he observed the sedan about 200 feet away and not until then did he realize its speed which he estimated to be about 50 miles an hour. In order to avoid the truck’s being hit Raines increased his speed to 5 to 7 miles an hour which was its limit in compound low. He had driven trucks for many years. Because the truck was new he feared that by shifting gears he might kill the motor. There was no other traffic to interfere with plaintiff’s swerving from the white stripe. In view of such facts would the trial court have been justified in giving the instruction on the last clear chance?

No criticism is made of the contents of the instruction proposed. It contains the six elements essential to its correctness. But the doctrine applies only when the evidence shows (1) that the plaintiff by his own negligence has placed himself in a position of peril from which he cannot escape or of which he is obviously unconscious; (2) that the defendant saw or knew the danger which beset the plaintiff, or knew facts from which a reasonable person would believe the plaintiff to be in peril; and (3) that while able, by the use of ordinary care to avoid injuring the plaintiff in his perilous position, defendant fails to use such care and injures plaintiff. (Girdner v. Union Oil Co., 216 Cal. 197 , 202 [ 13 P.2d 915 ]; Palmer v. Tschudy, 191 Cal. 696 , 700 [ 218 P. 36 ]; Darling v. Pacific Electric Railway Co., 197 Cal. 702 , 707 [ 242 P. 703 ]; Poncino v. Reid-Murdock & Co., 136 Cal.App. 223 , 226 [ 28 P.2d 932 ].) In exceptional circumstances only is the doctrine applicable to an action arising from a collision of two moving vehicles. This is especially true in a case in which the injured party, as in the

If each of them could have avoided the collision the doctrine would not apply. (Palmer v. Tschudy, supra.) Clearly, plaintiff could have avoided it by stopping his sedan or by veering to the right or by timing his movement so as to allow the truck to escape. But continuing as he did up to the instant of the injury he cannot establish the liability of defendants. Conceding defendants’ negligence, arguendo, the doctrine “has no application to a situation where by their mutual carelessness an injury ensues to one of two parties, both of whom are contemporaneously and actively in fault down to the very moment of injury.” (Palmer v. Tschudy, p. 701; Young v. Southern Pacific Co., 189 Cal. 746 , 755 [ 210 P. 259 ].) If a plaintiff cannot recover when both parties by the exercise of ordinary care could have avoided the accident, then surely he cannot recover when his own sole negligence in driving rapidly upon a boulevard of much vehicular traffic in the foggy blackness continued to the moment of impact with the truck which was in such a position that a collision could have been avoided by his exercise of ordinary care. (McHugh v. Market Street Railway Co., 29 Cal.App.2d 737 [ 85 P.2d 467 ].) He was conscious of the intersection of which he had noticed by the orange blinker lights 90 feet south of the point of collision. By reducing his speed to conform with the lack of visibility or by veering 3 feet when the truck hove into view he could have avoided the crash. In order for him to invoke the application of the doctrine of last clear chance he must have been so entrapped that by no reasonable effort could he save himself. (Sadler v. Benson, 109 Cal.App. 405 , 407 [ 293 P. 126 ].) Also, the evidence must show that after the truck driver discovered plaintiff’s peril he had sufficient time to avoid the collision by the exercise of ordinary care. (Pearce v. Elbe, 98 Cal.App. 101 , 104 [ 276 P. 389 ].) A motorist on the highway is presumed to be in possession of normal faculties and to have seen that which was within the range of his

The evidence in the instant action clearly shows that plaintiff was continuously negligent for some 500 feet prior to his striking the truck. Disregarding his excessive speed, asserted by Raines and Hahn, the damage to his sedan and to himself indicates a dangerous rate of movement for a motorist in a foggy night on a much-traveled boulevard. In approaching the intersection he did not slacken his speed or look out for other cars but continued anxiously to watch his rearview mirror and to think only of the welfare of Miss Provencher. He argues that he was unable “to see directly ahead with his headlights on because of the blinding effect of the refracted rays from the headlights which shine back in his eyes,” and that the driver of the truck was conscious of such effect of the headlights. But how could that gentleman have known that plaintiff did not see the 22-foot truck, or that he would continue at the same speed on entering the intersection, or that he would continue to hug the center stripe? Raines knew that the light above the intersection illuminated the street and that all his lights were burning as he moved into Cherry Avenue at a slow speed when plaintiff’s headlights were 400 or 500 feet to the south. But he did not know (1) that plaintiff was watching the avenue in the rear of his sedan; (2) that he was either ignorant of or could not see the intersection; (3) that he could not see the courtesy lights or the bulk of the truck 40 feet away, or that he could not stop his sedan within that distance; (4) that he would not veer to the right to avoid a crash when the road was clear of traffic. Raines gave Officer Haynes at the scene of the accident substantially the same report as that given in his testimony, and the officer testified that the courtesy lights could be seen in the fog at a distance of from 40 to 60 or 75 feet. A fireman testified that the street light was visible from his station 200 feet from the intersection. Plaintiff knew the avenue and the intersection well and that they were much traveled. He had made a special effort to locate the island in order to guide Miss Provencher to the right of it.

If he could see the blinker lights 50 feet ahead, if by the exercise of ordinary care he could have seen the truck’s courtesy lights at a distance of “from 40 to 60 or 75 feet,” and

In view of the situation presented by the proof the doctrine of the last clear chance was not available to plaintiff. (Wallis v. Southern Pacific Co., 184 Cal. 662 , 673 [ 195 P. 408 , 15 A.L.R. 117 ]; Johnson v. Southwestern Engineering Co., 41 Cal.App.2d 623 , 627 [ 107 P.2d 417 ]; Lasch v. Edgar, 46 Cal.App.2d 726 , 728 [ 116 P.2d 949 ].) Until the moment of the impact defendant Raines properly relied upon plaintiff's continuing.duty to observe the presence of the truck and not to collide with it. Also, in the exercise of reasonable care he might presume that plaintiff would not continue his approach until he arrived at the truck, since it is obvious that plaintiff could with the least care have avoided the impact. (Young v. Southern Pacific Co., 182 Cal. 369 , 380 [ 190 P. 36 ]; Behne v. Pacific Electric Railway Co., 30 Cal.App.2d 437 , 442 [ 86 P.2d 843 ]; McHugh v. Market Street Railway Co., supra; Korchak v. Pacific Electric Railway Co., 9 Cal.App.2d 89 , 93 [ 48 P.2d 752 ]; Thompson v. Los Angeles & San Diego Beach Railway Co., 165 Cal. 748 [ 134 P. 709 ]; Haber v. Pacific Electric Railway Co., 78 Cal.App. 617 [ 248 P. 741 ]; Sichterman v. R. M. Hollingshead Co., 94 Cal.App. 486 [ 271 P. 372 , 1111].) Nothing in the circumstances surrounding the accident would have indicated to a reasonably prudent man that plaintiff would drive directly into the truck with undiminished speed or that he was in any danger if he exercised ordinary care. The defendants were therefore not responsible for plaintiff's safety. (Richardson v. Ribosso, 120 Cal.App. 641 , 643 [ 8 P.2d 226 ]; Sichterman v. R. M. Hollingshead Co., 491.)

The contention of plaintiff is that the truck was moving so slowly that its courtesy lights could have been mistaken for the amber light on the north side of Wardlow Road; that both Raines and Hahn observed that the sedan while still 200 feet south was coming at such a dangerous speed that it would

Plaintiff especially emphasizes as decisive of this appeal Gillette v. City of San Francisco, supra, and Girdner v. Union Oil Co., supra. Neither case lends any support to his argument. In the ease of Gillette he was standing in a position of danger with his back toward the approaching street ear, unaware of his peril and in plain view of the motorman. From such facts it was a fair inference that the motorman must have seen that Gillette was not conscious of his danger and could have avoided striking him by simply sounding his bell or stopping his car. His negligence in failing to do either was the proximate cause of the accident, making applicable the rule of the last clear chance. In the case of Mr. Girdner, he was in a touring ear enclosed with side curtains. He had just passed over a Southern Pacific track and upon entering the highway was driving at about 12 miles an hour. Having

Plaintiff contends that defendant Raines could have cleared the intersection more quickly had he started out in second gear; that he started in compound low and continued without shifting to low or intermediate until the collision; that he was thus negligent in failing to act when confronted with the last clear chance. This is not a sufficient answer to his own continuing negligence. Raines knew that by proceeding in any higher gear up the incline on the avenue he would incur more likelihood of killing his motor. It was his duty to exercise his own judgment as he proceeded, and not to act as he might have conceived another would act.

Plaintiff contends that other errors were committed to his prejudice and that by reason thereof the order should be affirmed. After proving by Raines, that he started to make the turn into the avenue in compound low gear, he called the witness Beseau, an experienced truck driver, and by questions offered to show by him that the proper practice in driving a truck with compound low gear is to start in ordinary low when on level ground and that it is improper to use compound low except when the truck is heavily loaded or is

The order is reversed.

McComb, J., and Wilson, J., concurred.