Opinion
PRE-MIXED
6-24-1957
Maureen CONNOLLY, Plaintiff and Respondent, v.CONCRETE COMPANY, a corporation, and Albert LeRoy Stevens, Defendants and Appellants.* Civ. 5416.
Luce, Forward, Kunzel & Scripps, San Diego, for appellants. Butler, Kaminar & Sorbo, San Diego, and Melvin M. Belli, San Francisco, for respondent.
Maureen CONNOLLY, Plaintiff and Respondent,
v.
PRE-MIXED CONCRETE COMPANY, a corporation, and Albert LeRoy Stevens, Defendants and Appellants.*
June 24, 1957.
Rehearing Denied July 22, 1957.
Hearing Granted Aug. 20, 1957.
Luce, Forward, Kunzel & Scripps, San Diego, for appellants.
Butler, Kaminar & Sorbo, San Diego, and Melvin M. Belli, San Francisco, for respondent.
MUSSELL, Justice.
This is an action for the recovery of damages for personal injuries sustained by plaintiff when, while riding a horse, she was struck by a cement truck owned by the defendant Pre-Mixed Concrete Company and operated by Albert LeRoy Stevens, an employee of said company. The accident occurred at about 4:45 p. m. on July 20, 1954, on Friars Road in San Diego, an east-west, two-lane highway, and near its intersection with Colusa Street, which runs north and south. Stevens, driving the truck south on Colusa Street, turned east on Friars Road at a speed 15 to 25 miles per hour. The truck had a defective exhaust system and made considerable noise. As he turned the corner, Stevens saw plaintiff and two other girls on horseback riding toward him on Friars Road, approxiamtely three-fourths of a block away. Plaintiff was in the lead on the shoulder on the north side of the road, Miss Linda Thornton about one length behind her and Miss Steiler was on the south side of the road.
Stevens testified that on coming around the corner, the horses, hearing the truck, 'started dancing, prancing around, and moving in and off the road, off on the shoulder, back and forth, in general, just milling around'; that as he came around the corner 'It would have been easy enough to stop in 20 feet, a considerable distance from the horses'; that all three of the girls were waving their arms and yelling 'stop, stop'. He testified that the girls waved at him but he could not hear what they were saying; that he thought they wanted him to slow down and 'speculated' they wanted him to stop; that 'I shifted before coming to the place where the accident took place. I was getting my truck to slow down and then lessen the noise. I depressed the clutch to cut out as much noise as possible and ease through between the horses and then proceed on to get the truck and sound away from the horses'; that after passing the horse on the south side of the road, he looked in his mirror and saw one other horse and rider and a riderless horse, and that he did not know what went on at the back of the truck.
Plaintiff testified that she heard the noise of the truck before it came around the cornet, at a speed of from 20 to 25 miles per hour; that as the truck rounded the corner, it swerved toward the middle 'be cause the horses were staggered on both sides * * * and as it came down, we all looked at it, we all shouted and raised our hands and did everything in our power to slow him down and make him stop because the horses were practically frantic'; that as the truck went by, her horse whirled to the left and completely around, and as it whirled, it threw her leg out and the side or end part of the truck caught her leg; that as soon as she was hit the horse started galloping off the center of the road and she fell off; that she tried to get up and walk away and her leg gave out; that she laid down and then saw that her leg was injured.
Kathryn Walker, a registered nurse, who was driving a car westerly on Friars Road, testified that she saw the three girls on horseback, two on the north side of the road and one on the south; that the truck was just coming around the corner when she first saw it and it was traveling 20 to 25 miles per hour; that the driver picked up speed; that at the time of the impact, plaintiff was on her own side of the road and the front part of the truck was over the middle of Friars Road; that she went over to plaintiff and observed that she was bleeding profusely; that plaintiff's wound was a 'real jagged laceration and you could see the bone. You could see the muscles and the wound was pushed up into the fleshy part of the calf. It started down low on the shin bone and was about nine or ten inches'; that she applied a tourniquet and kept it on until the ambulance came.
Linda Thornton testified she first saw the truck when it rounded the corner into Friars Road and that it was about three quarters of a block away; that 'The truck was coming around the corner and it was going so fast and making so much noise that we knew there would be trouble, so all three of us put up our hands to signal him to stop and I believe all three of us shouted to him to stop. He came right on down the road and I don't recall that he slowed up and the noise seemed to be about the same as he came down; that they were walking their horses and that Maureen's horse shied and collided with the truck and I saw her horse run alongside the truck for a few seconds. It looked as if it was touching the truck while it was running. Then my own horse whirled around and by the time I had her under control, Maureen had fallen off her horse and was crawling off the side of the road.'
A police officer who examined the truck after the accident testified that he noticed a piece of cloth and what appeared to be pieces of flesh on the left rear mudguard; that he found blood about two feet south of the center line of the road and about 150 feet east of Colusa Street; that the asphalt portion on Friars Road at that place is about 18 feet wide and has dirt shoulders approximately 4 feet in width.
A jury returned a verdict in favor of plaintiff and against defendants and assessed damages in the amount of $95,000 Defendants appeal from the judgment entered in accordance with the verdict and their first contention is that it was prejudicial error for the trial court to instruct the jury on the last clear chance doctrine. It is conceded that the instruction given is in substance a last clear chance instruction. However, appellants argue that the evidence did not justify the court in the giving of it to the jury.
In Brandelius v. City & County of San Francisco, 47 Cal.2d 729, 306 P.2d 432, 440, the formula prescribing the conditions for the application of the doctrine of last clear chance is restated as follows: 'The doctrine of last clear chance may be invoked if, and only if, the trier of the facts finds from the evidence: (1) that the plaintiff was in a position of danger and, by his own negligence, became unable to escape from such position by the use of ordinary care, either because it became physically impossible for him to escape or because he was totally unaware of the danger; (2) that defendant knew that plaintiff was in a position of danger and further knew, or in the exercise of ordinary care should have known, that plaintiff was unable to escape therefrom; and (3) that thereafter defendant had the last clear chance to avoid the accident by the exercise of ordinary care but failed to exercise such last clear chance, and the accident occurred as a proximate result of such failure.'
It is further stated in said decision, 47 Cal.2d at page 738, 306 P.2d at page 438: 'In analyzing the required conditions for the application of the doctrine as set forth in said decisions, it should be noted that the time element is the all important factor. In other words, if the doctrine is to be applied and a recovery is to be permitted despite the contributory negligence of the injured party, there must be substantial evidence to show that the defendant had a last clear chance to avoid the accident by the use of ordinary care following the time that the injured party had lost any similar opportunity to avoid the accident by the use of such care. Under such circumstances, the injured person's contributory negligence does not bar a recovery, for it has been said that 'When the doctrine applies, plaintiff's negligence becomes remote rather than proximate in causation. If it does not apply, his negligence remaines proximate in its causation and will bar his recovery.' Gridner v. Union Oil Co., supra, 216 Cal. 197, 204, 13 P.2d 915, 918.'
In Doran v. City & County of San Francisco, 44 Cal.2d 477, 286 P.2d 1, 6, it is held that: 'The ordinary case presenting the issues of negligence and contributory negligence is governed by the traditional rules which cover those issues, and which make contributory negligence a bar to recovery by the injured party. The last clear chance doctrine, which relieves an injured party of the results of his own contributory negligence and permits him to recover despite such negligence, is applicable only in the exceptional case in which there is substantial evidence to support a favorable finding on each of the several required elements above enumerated. And as above indicated, if any one of these elements is absent, the doctrine does not apply and the case is governed by the ordinary rules of negligence and contributory negligence.'
It is further held therein that it is only the exceptional case to which the doctrine of last clear chance may be applied, and that the mere fact that there is ample evidence to show that a defendant is negligent, without substantial evidence of the existence of the other required elements, will not warrant the question of whether there is any that the question of whether there is any substantial evidence, conflicting or otherwise, which could justify the application of the doctrine in a given case is a question of law, and in the absence of such evidence, it is error for the trial court to instruct the jury concerning that doctrine. In Galbraith v. Thompson, 108 Cal.App.2d 617, 622, 239 P.2d 468, it is held that charging the jury upon the doctrine of last clear chance when there is no substantial evidence to support the theory is reversible error.
In the instant case we find no substantial evidence that the plaintiff was negligent. Friars Road is a public highway. Plaintiff was proceeding slowly westward on the shoulder on the north side of this road, when the truck turned toward her from Colusa Street. She held up her hand and signaled the driver to slow down or stop. When the truck driver did not stop she proceeded on westerly, keeping on the shoulder of the road and was almost past the truck when her horse suddenly wheeled around to the left, facing east, throwing her right leg out and catching it on the rear corner of the truck. While it is suggested that plaintiff might have dismounted from her horse and thus extricated herself from a position of danger, it is not unreasonable to assume that to attempt to so dismount in front of the oncoming truck would have been more dangerous than to remain on her mount. We conclude that plaintiff used ordinary care under the circumstances, and since there is no substantial evidence of her negligence, it follows that the first necessary element for the application of the doctrine of last clear chance was not established. As is said in Doran v. City & County of San Francisco, supra, 44 Cal.2d at page 486, 283 P.2d at page 5, 'if any one of these elements is absent, the doctrine does not apply.' It also appears that there is no substantial evidence that the truck driver had the last clear chance to avoid the accident. The uncontradicted evidence shows that as the truck was passing safely between horses on the north and south sides of the road, plaintiff was then proceeding safely westward, passing the truck. The driver was not aware that plaintiff's horse had suddenly wheeled around and caused plaintiff's leg to strike the truck until after the accident occurred. We cannot say that he should have known that plaintiff's horse would wheel around as it did. It is said in Rodabaugh v. Tekus, 39 Cal.2d 290, 296, 246 P.2d 663, 666, quoting from Poncino v. Reid-Murdock & Co, 136 Cal.App. 223, at page 227, 28 P.2d 932, at page 934: '* * * 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 have possible chance to avoid an unexpected peril created practically simultaneously with the happening of the accident by the negligence of the injured party.''
And as the court said in Doran v. City and County of San Francisco, supra, the time element is the all-important factor, and if the doctrine is to be applied there must be substantial evidence to show that the defendant had a last clear chance to avoid the accident by the use of ordinary care, following the time that the injured party had lost any similar opportunity to avoid the accident by the use of such care. Plaintiff was in a position of danger when her horse suddenly wheeled around, and it cannot be said that the truck driver then had a clear chance to avoid the accident.
We conclude that there is no substantial evidence in the record to sustain the application of the last clear chance doctrine and that it was prejudicial error for the trial court to instruct the jury with respect thereto.
Appellants, in a supplemental brief, argue that the judgment is excessive and is not supported by any substantial evidence, and that the damages awarded are speculative and uncertain of occurrence. However, since we have concluded that the judgment must be reversed because of the error in instructing the jury as to the last clear chance doctrine, it is unnecessary to here pass upon the questions relative to the damages allowed. Under the circumstances shown by the record these questions should be open for determination on a retrial of the action.
The judgment is reversed.
BARNARD, P. J., and GRIFFIN, J., concur. --------------- * Opinion vacated 319 P.2d 343.