Opinion
4-26-1956
Inga A. BRANDELIUS and Pierre Brandelius, Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation, et al., Defendants and Respondents.* Civ. 16525.
Hoberg & Finger, San Francisco, for appellants. Dion R. Holm, City Atty., City & County of San Francisco, Jerome Cohen, Deputy City Atty., San Francisco, for respondents.
Inga A. BRANDELIUS and Pierre Brandelius, Plaintiffs and Appellants,
v.
CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation, et al., Defendants and Respondents.*
April 26, 1956.
Rehearing Denied May 25, 1956.
Hearing Granted June 20, 1956.
Hoberg & Finger, San Francisco, for appellants.
Dion R. Holm, City Atty., City & County of San Francisco, Jerome Cohen, Deputy City Atty., San Francisco, for respondents.
PER CURIAM.
This is an appeal from an order granting a new trial after verdict for plaintiffs in an action for the wrongful death of a man who, after alighting from a cable car of defendant City and County, was struck by another such car coming from the opposite direction. The order specifies that the new trial was granted on the sole ground that the jury was not properly instructed on 'the duties of a street railway toward a passenger who has alighted from a car and moved away from that car in a direction of his own choosing.' In support of their motion respondents had strongly urged error in instructing on the doctrine of last clear chance when this doctrine was not applicable and this standpoint also is maintained in their brief on appeal. At the oral argument they for the first time urged error in the formulation of the instruction on last clear chance as justifying the new trial. I.
The extensive instructions given as to the care required by the carrier with respect to an alighting passenger were proposed by appellants and given partly as proposed, partly as modified by the court. The more crucial ones are the following: 'The responsibility imposed by law upon a carrier of passengers for hire, such as the operation of a cable railway, includes the duty to provided a reasonably safe place where the passengers may board or alight from the cable cars. 'If you find from the evidence that the deceased was exercising ordinary care for his own safety and that he had been discharged as a passenger at and was occupying a place designed by defendant City and County as a regular stopping place for the discharge of passengers, then the defendant City and County owed to the deceased the duty to exercise the highest degree of care to avoid injuring him. 'A place to discharge passengers, as used in these instructions, refers to any place at which it is the practice of the carrier to stop for the purpose of discharging passengers. This includes such places immediately adjacent to the track which must be used or reasonably may be expected to be used, by persons being discharged from the cable cars. 'The relationship of carrier and passenger, and the obligation to exercise the utmost care and diligence to provide safe carriage of passengers, continues until such time as an alighting passenger has reasonable opportunity to reach a place outside of the immediate sphere of activity of the carrier which might reasonably constitute an active hazard to the passenger.'
Appellants urge that there is no error in said instructions and that they are supported by the California cases. Respondents in defending the order to not contend that any of the instructions stated is not supported by the authority adduced for it, but urges error on the general ground that 'the carrier-passenger relationship had terminated as a matter of law when deceased alighted from the cable car and cleared the car from which he alighted.' We have concluded that the rule advocated by respondents if applied to the present case would too rigidly restrict the carrier-passenger relation and the duty of utmost care which attaches to it, that the instructions given do not erroneously extend respondents' burden of utmost care and that the evidence does not make them inapplicable as showing termination of the carrier-passenger relation as a matter of law.
It is true that ordinarily the carrier-passenger relation ends when a streetcar passenger has terminated his trip by alighting safely from the car which transported him, Choquette v. Key System Transit Co., 118 Cal.App. 643, 653, 5 P.2d 921, but said rule is subject to qualifications. In Dayton v. Yellow Cab Co., 85 Cal.App.2d 740, 745, 193 P.2d 959, 962, this court stated that the rule of utmost care and diligence set forth in Civil Code section 2100 applies 'until the passenger reaches a place outside the sphere of any activity of the carrier which might reasonably constitute a mobile or animated hazard to the passenger.' In Boa v. San Francisco-Oakland Terminal Rys., 182 Cal. 93, 100-101, 187 P. 2, 4, the Supreme Court expresses its approval of the principles 'that responsibility continues until the passenger has had a reasonable opportunity of getting away from the car without injury'; that it is for the jury to decide 'whether or not the defendant allowed plaintiff a reasonable opportunity to leave its car in safety and thus to pass beyond its care' and that these rules apply to streetcar passengers specifically in case of accidents 'Caused by the negligent use by the railway company of its own instrumentalities.' In Lagomarsino v. Market Street R. Co., 69 Cal.App.2d 388, 158 P.2d 982, 986, it was held that the company owed the highest degree of care to prospective passengers waiting to board a loading car in a customary loading place to protect them from injury by other cars operated by the company passing such loading place or station, and instructions were upheld to the effect that said duty extended to "such places which must be used, or reasonably may be expected to be used, by persons intending to become passengers and while waiting to board vehicles of the carrier." We hold that the same duty of utmost care in the operation of its streetcars to prevent injury is owed by the City and County to passengers which have alighted from a streetcar in a place designed therefor so long as they have not yet reached a place safe from the city's streetcar operation and are in a place which they can be expected to use in getting safely away from the car that transported them. The instructions with which this matter was submitted to the jury, stated this principle correctly and at any rate not too favorably for appellants. There remains in this respect the question whether the evidence was such that instruction on this principle was justified.
The accident occurred in the intersection of California and Powell Streets in San Francisco. On Powell the city runs a cable car northerly and southerly, on California one westerly and easterly. At the southwest corner of the intersection are the Stanford Court Apartments, where decedent was employed. The accident happened on May 6, 1952 at about 8:05 or 8:06 in the morning, the time at which decedent was accustomed to go to work by means of the southbound Powell cable car. That cable car makes a stop in the southwest part of the intersection with its front in the southern crosswalk across Powell Street. The car has an open front part with two benches back to back along the longitudinal axis of the car. The passengers on the left hand bench (looking to the front) have no access to any other part of the car and must alight to the left between the southbound and northbound tracks. According to the scale map in evidence the distance between these tracks is 5' 10"'; the tracks in each direction are 4' wide. According to a scale model of a cable car in evidence such car is 8' wide, with a wheel distance of 4' and an overhang in part 2' wide at each side. The free space between two passing cable cars is therefore 1' 10"'.
The traffic of cable cars in the intersection is controlled by the city from a control tower in its southeast corner. Nearing the intersection a northbound car ascends a hill from Pine to California. The northbound car automatically has a red light against it when reaching Pine. It is turned to green when the car is permitted to start up the hill. There was conflict in the evidence as to whether the green light was normally withheld only when a California cable car was crossing the intersection or also when a soughbound Powell cable car was discharging passengers in the intersection.
Just before the accident the witness Reinhardt, a mechanical engineer, was going to his work walking east along the north side of California. When he came to the intersection he waited for a southbound Powell cable car to cross his path. It stopped at the stopping place in the southwest part of the intersection mentioned before. As it went across the intersection Reinhardt crossed the southbound tracks in the northern pedestrian crosswalk across Powell. When he was there on the more easterly of the southbound tracks he saw decedent walking north in his direction next to the stopped southbound car between the southbound and northbound tracks. The spot on the map where the witness placed decedent when he first saw him indicates that he was then six feet south of the rear end of the stopped car. Simultaneously the witness saw a northbound Powell cable car approaching with its front in the southern crosswalk across Powell. According to the map the distance between decedent and the front of the northbound car was then twenty feet. The witness remained in the same spot looking at what would happen because he saw that the man was in a precarious position. He saw that decedent took several steps toward him (northerly), then, when the cable car was bearing close upon him he turned around throwing up his hands facing the oncoming car, and, evidently after being hit, staggered back several steps and fell on the pavement his head pointing to the northwest corner of the intersection. It was stipulated that the death was caused by a head injury suffered as a result of the accident.
The police officer who investigated the accident found a puddle of blood on the most northerly westbound track on California, 21' 2"' east of the west curbline of Powell Street. (This is between the northbound and southbound tracks on Powell, a little nearer to the southbound ones. The northernmost track on California was, according to the map in evidence, approximately seventeen feet north of the rear end of the stopped southbound cable car.) The investigating officer testified also that the gripman of the northbound car, the witness Mosley, told him that decedent 'got off the left front of a southbound cable car and just stepped in front of the left front of this northbound cable car.' We will revert to the conflicting evidence of the gripman Mosley later. The evidence stated presented a question of fact as to whether under the legal principles above developed the carrier-passenger relation and the carrier's duty of utmost care not to injure the passenger by the operation of the cable cars had terminated or not.
Said evidence supports the conclusion that decedent had been sitting on the left front bench of the southbound cable car, that when that car stopped he alighted in the only possible way between the tracks and that because the space between passing cars was only 1' 10"', said place was not safe for alighting or walking away if a car from the south should pass, certainly not if it should approach unnoticed. If the jury believed Mosley's above evidence that decedent was hit when he had just stepped off the southbound car they undoubtedly were justified in holding that the carrier-passenger relation had not yet terminated. But also if the jury believed the testimony of the distinterested witness Reinhardt, a question of fact in that respect would be presented. It would then appear that when decedent had alighted between the tracks, he walked north along the stopped cable car intending to go to the Stanford Court Apartments around its rear end, that he did not notice the northbound car until he was a few feet north of the rear end of the stopped car, where he was going to turn to the left, probably some 10 feet north from the place where Reinhardt first saw him, that he was hit there, that he staggered back some 9 or 10 feet more and that then his head hit the pavement 3 or 4 feet further north. It was then for the jury to decide whether decedent was hit in a place which he could be expected to use in getting away to safety from the car that had transported him. It was for them to say whether he, forced to alight between tracks to the east of the car he was riding, could be expected to go to his destination at the southwest corner of the intersection around the rear of the stopped car and to be between the tracks near the rear of said car. It cannot be said as a matter of law that decedent could only be expected immediately to cross the northbound tracks in westerly direction, the direction opposite to his destination, or to cross in front of the car from which he had alighted and which would soon start up again. II.
The second question is the one regulating to the propriety of instruction on 'last clear chance.' To said doctrine the normal rule applies that only when there is not any substantial evidence, conflicting or otherwise which could justify the application of the doctrine the court should keep it from the jury and only in such a case is the giving of an instruction on last clear chance error. Hardin v. Key System Transit Lines, 134 Cal.App.2d 677, 684-685, 286 P.2d 373; Doran v. City and County of San Francisco, 44 Cal.2d 477, 487, 283 P.2d 1. It is a regularly stated rule that 'An instruction stating the doctrine is proper when there is evidence showing: '(1) 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; (2) 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 (3) 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.'' Daniels v. City and County of San Francisco, 40 Cal.2d 614, 619, 255 P.2d 785, 788; Doran v. City and County of San Francisco, 44 Cal.2d 477, 483, 283 P.2d 1; Peterson v. Burkhalter, 35 Cal.2d 107, 109-110, 237 P.2d 977; Girdner v. Union Oil Co., 216 Cal. 197, 202, 13 P.2d 915.
There can be no doubt that on the basis of the evidence the jury could find that decedent was negligent and, as a result thereof, in a position of danger from which he could not escape because he was totally unaware of it until it was too late to escape. It could be held that decedent when stepping from the car should have looked out to the right and should then have seen the northbound car nearing from Pine Street. There was moreover evidence that on that car a gong had been rung until it came to the commencement of the southern crosswalk and that that going was heard by another passenger of the stopped southbound car. Decedent's unawareness can be inferred from his action as described by the witness Reinhardt, supra, and also from the testimony of the defendant Mosley, who testified that all the time he saw decedent he was walking along with his back turned to Mosley and that he gave no indication that he knew the car was starting up behind him. Respondents' contention that because the law presumes that decedent was exercising ordinary care, it must be assumed that he was aware of the approaching car and its danger but nevertheless chose to walk in front of it is devoid of all merit. The jury could hold that the presumption of due care was overcome by the evidence stated. Neither is there any doubt that negligence of defendants could be found in their running of the northbound car past the stopped car when passengers had to alight between tracks and the distance between passing cars was only 1' 10"'. (The conductor of the northbound car Pucheu testified that he did not think there was enough room for anybody to be walking between passing cable cars.)
For the same reason the jury could find that the gripman Mosley had knowledge of plaintiff's precarious situation and knew or in the exercise of ordinary care should know that decedent could not escape. In his deposition he declared that he saw decedent step off the car and to the investigating police officer that 'he got off the left front of a southbound cable car.' According to the testimony of Reinhardt, previously stated, Mosley's car was still in the crosswalk 20 feet from decedent when decedent was between the tracks with his back to Mosley's car 6 feet south of the rear of the stopped southbound car. The length of such a cable car, according to the scale model in evidence is 27 feet of which the open front part accounts for 12 feet, the back part for 15 feet. Therefore decedent had at that time gone some 10 to 20 feet between the tracks with his back to Mosley since the moment Mosley saw him step from the left front of the car. Considering the distance of only 1' 10"' between the overhangs of the two cars and Pucheu's testimony that he thought the room between passing cable cars was insufficient for anybody to walk there, the jury could hold that Mosley, an experienced gripman, must have been aware of deceased's precarious situation as soon as he saw him alight between the tracks and that he should have known that deceased was unaware of his danger when he turned his back to him and walked north between the tracks. Respondent contends that it must be accepted that Mosley had no knowledge of the danger because he testified that he had often seen people get off the car and stand between cars in safety and that therefore he did not pay particular attention to the standing car. Evidently the jury need not have believed this testimony considering the evidence stated before and the fact that Mosley was an interested witness in whose testimony there were many conflicts. Moreover Mosley testified in another place: 'When I saw him, yes, he was in the path of the left front grab handle, too close to my track, going away from me.'
A somewhat more dubious point is whether defendants could be said to have had the last clear chance to avoid the accident by exercising ordinary care. In Doran v. City and County of San Francisco, 44 Cal.2d 477, 488, 283 P.2d 1, 7, it was stressed that 'the doctrine excludes from its application any case in which plaintiff's state of helplessness, resulting from his own negligence, is created so nearly simultaneously with the happening of the accident that neither party may be fairly said to have thereafter a last clear chance to avoid the accident.' In this case decedent's danger and his unawareness of it were not shown until he had alighted and turned his back to the oncoming car. After that he proceeded between 20 and 30 feet before he was struck. Assuming that a pedestrian goes with a speed of approximately 4 feet per second, that gave Mosley between 5 and 7 1/2 seconds to avoid the accident from the moment he saw decedent alight and turn his back to him. We do not consider the period of 5 to 7 1/2 seconds so 'nearly simultanous' as to necessarily exclude the application of the doctrine. In Wylie v. Vellis, 132 Cal.App.2d 854, 283 P.2d 327, this court recently held that 4 seconds was not such a short period, when the speed of the vehicles involved was not more than 10 miles an hour. See for the proposition that still shorter periods available to prevent accident need not exclude application of the doctrine Peterson v. Burkhalter, 38 Cal.2d 107, 112, 237 P.2d 977; Buck v. Hill, 121 Cal.App.2d 352, 358 et seq., 263 P.2d 643. Here the speed of the cable car before it reached the intersection was at most 9 1/2 miles per hour, after the release of the cable in the intersection at most 6 1/2 miles an hour. There were three braking devices. When the cable car was disengaged and going at the latter speed it could be stopped in 5 or 6 feet. The contention that Mosley had no clear chance to avoid the accident is based on his evidence that decedent stepped from the stopped car in front of his car at a distance of not more than 4 feet when he was engaged in or on the point of releasing the cable and that at the moment he is doing that he is in no position to use any of the braking devices. To avoid catching or fouling the cable of the California line the gripman of an oncoming Powell car must release its cable. A sign 'let go' is painted in the southern crosswalk twenty-five feet south of the southernmost rail on California. Mosley testified that the release was made halfway between the 'let go' sign and a somewhat more northerly protective bumper, which he first testified was 4 or 5 feet north of the sign, later that it was under a hatch nearer to the California track (probably some 10 feet south of the most southerly rail). However, this evidence is inconsistent with Mosley's testimony that decedent was struck near or on the eastbound California track, which accords with the testimony of Reinhardt and places the point of the accident 20 to 30 feet from the point where decedent alighted. If, as testified by Reinhardt, Mosley's car was still in the southern crosswalk 20 feet from decedent after decedent had gone 10 to 20 feet, the car must have been 35 to 70 feet further south when decedent alighted and turned his back to it. Mosley in his deposition testified that he could not see passengers getting off the unloading car until he reached the crosswalk but after experiments had shown that they were visible at least from halfway between Pine and California he so testified. He could have seen them at least from 135 feet from the intersection and testified that the last 100 feet he looked straight in front and that there was no traffic interrupting his view. Under such evidence it was for the jury to decide whether there was a clear chance to stop the cable car before the let go sign, or whether he could have stopped after releasing the cable in the more then 20 feet between the let go sign and the place where decedent was hit. Moreover the jury could also have found that he could have warned decedent by continuing the gong signal after the car had reached the crosswalk. Hence the giving of an instruction on last clear chance was no error. III.
Finally respondent urged at the oral argument in this court that, even if instruction on the doctrine of last clear chance was proper in this case, the instruction given, BAJI 205, was erroneously formulated. Respondent relied on Moreno v. Los Angeles Transit Lines, Cal.App. 286 P.2d 923, decided after the order appealed from, in which case a reversal of a judgment for plaintiff in a negligence action was based on the ground among others that said instruction, BAJI 205, long a standard instruction and upheld in many cases, was erroneous. In the Moreno case the Supreme Court granted a hearing and the appeal was thereafter dismissed by stipulation of the parties. However, the reasoning of the district court in criticizing the instruction remains persuasive.
The instruction in question 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 deceased and defendants 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 deceased, 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 the perilous situation of the deceased. 'Fourth: That it appeared to the defendant, or would have appeared to him in the exercise of ordinary care, that deceased 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 the perilous situation of the deceased, 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.'
The court in the Moreno case found error in the formulation of 'fifth', supra. The doctrine requires the defendant to avail himself of a last clear chance to avoid the accident only if the opportunity is present when defendant realizes plaintiff's dangerous position and also realizes or ought to realize his probable inability to escape therefrom because of physical impossibility or plaintiff's unawareness of his danger. Sills v. Los Angeles Transit Lines, 40 Cal.2d 630, 637, 255 P.2d 795; Palmer v. Tschudy, 191 Cal. 696, 700, 218 P. 36; Johnson v. Southwestern Engineering Co., 41 Cal.App.2d 623, 626, 107 P.2d 417; Restatement Torts § 480 comment b. Although the requirements as to defendant's realization of these two circumstances are clearly and correctly expressed in third and fourth respectively, when fifth states the time at which a clear chance must have been available it considers third only (knowledge of dangerous position), not fourth (actual or constructive knowledge of apparent unawareness of danger or inability to escape). Literally construed the instruction would permit application of the doctrine of last clear chance, if defendant became aware of deceased's dangerous situation at a time at which he could avert the accident but at which he still could expect deceased to extricate himself, and defendant became thereafter aware of the impossibility of escape at a time at which he could not avoid the accident any more, a situation in which the doctrine evidently is not applicable. It cannot be said that 'perilous situation' in fifth includes both the position of danger of deceased and his inability to escape or unawareness. 'Perilous situation' in fifth must have the same meaning as the same expression in third. In third, where actual knowledge is required, perilous situation evidently relates to 'position of danger' in first, whereas the requirement of actual or constructive knowledge of deceased's unawareness or inability to escape is separately stated in fourth. We therefore agree in so far with the Moreno opinion that we consider the formulation of fifth of the instruction BAJI 205 inaccurate. The court in that case points out correctly that in none of the cases which upheld said instruction the above defect had been urged or considered.
Another question is, however, whether said inaccuracy in the formulation, which for many years escaped the attention of the courts, should be considered to have had a prejudicial effect on the jury which requires the granting of a new trial. It must be noted in this respect that the order granting a new trial expressly states that it was granted on a different ground only, that at the time of said order no attention to the formulation of BAJI 205 had yet been called by the Moreno opinion and that this point had not been urged on or considered by the trial court. We must therefore decide the question of the probability of prejudicial effect without the benefit of the opinion of the trial court on this question. We are convinced that it is hardly conceivable that reasonable men should apply to the instruction BAJI 205 as a whole the literal construction stated above, from which the inaccuracy of the formulation is derived. Under fourth the instruction clearly requires for the applicability of the doctrine that the defendant realized or should have realized the apparent unawareness of danger or inability to escape of the victim. No reasonable man will consider the possibility that the law would attach significance to the realization of facts at a time at which no effective action can be based thereon any more. This is probably also the reason why the inaccuracy in the instruction remained so long unnoticed. 'In reviewing instructions, the appellate court must read the charge as a whole and give the instructions a reasonable construction from the standpoint of their probable effect upon the jury.' Wells v. Lloyd, 21 Cal.2d 452, 458, 132 P.2d 471, 475; Megee v. Fasulis, 65 Cal.App.2d 94, 101, 150 P.2d 281. In Popejoy v. Hannon, 37 Cal.2d 159, 168, 231 P.2d 484, 490, it is said: 'Prejudicial error does not necessarily result from the giving of an instruction which, subjected to meticulous analysis, might be given a 'possible construction' making it subject to 'criticism'. It is extremely doubtful that the jurors analyzed the instruction with such exactitude as counsel for the Hannons.' See also Duff v. Schaefer Ambulance Service, Inc., 132 Cal.App.2d 655, 680, 283 P.2d 91; Mayfield v. Fidelity & Casualty Co., 16 Cal.App.2d 611, 629-630, 61 P.2d 83; Reuter v. Hill, 136 Cal.App. 67, 77, 28 P.2d 390. We have stated before that we think there is no probability whatever that the jury has taken the instruction BAJI 205 in the stated literal meaning, which, though theoretically possible, is evidently senseless. Under Article VI, § 4 1/2 of the Constitution and the authorities cited above the theoretical inaccuracy in said instruction then does not require the granting of a new trial, although in future paragraph fifth of said instruction should better be given in a corrected form. It may also be noted, that at the end of the instruction 'despite the negligence of the plaintiff' should not be used when, as in this case, the action is for wrongful death.
In the absence of any error which would justify the granting of a new trial the order granting defendants' motion for a new trial must be reversed.
Order reversed. --------------- * Opinion vacated 306 P.2d 432.