MOORE, P.J., Dissenting.

I dissent. The conclusion reached by the majority opinion is not consistent with the law and is contrary to the decisions of the Supreme Court for the reason that it rejects the implied findings of the jury and rules, as a matter of law, that Opstad did not have knowledge of Johnson's perilous position and further that Opstad did not know or that he did not have reason to believe that plaintiff was oblivious of the danger and that he was in a position from which he could not extricate himself. Except for the omission of some pertinent facts hereinafter set forth, the resume recited constitutes a fair summary of the testimony presented to the jury.

It is there said that Opstad, while travelling at a speed of 25 to 30 miles per hour and while at a distance of 250 to 300 feet west of the intersection first observed the truck of Johnson approaching 500 to 600 feet north of the intersection travelling at a speed of 60 to 70 miles per hour. It then proceeds to say that upon reaching a point 25 to 30 feet from the intersection, Opstad again observed the truck which was then 40 to 50 feet from the intersection and was travelling at a reduced speed of 45 to 50 miles an hour. From these statements, two inferences are drawn, viz.: (1) that Opstad did not observe the truck at any time between the point 500 feet north of the intersection and its position 40 to 50 feet from the intersection, and (2) that plaintiff did in fact reduce his speed from 60-70 to 40-50, and the authors of the opinion, having drawn those inferences, conclude that the triers of the facts must have drawn the same inferences and if they did not, then they should have done so. But let us supplement the statement of the evidence contained in the opinion.

The police officer testified: "Mr. Opstad told me . . . when he got approximately within 200 feet of the intersection of Gold Queen Road and Cactus Queen Road, he noticed a south bound car on Gold Queen Road, which was, at that time approximately two to three hundred feet north of the intersection, and they both arrived at the intersection at approximately the same time, and he . . . Mr. Opstad . . . thought that the car on the Gold Queen Road would yield the right of way to him, and so he kept proceeding, but on seeing that the south-bound car was not going to yield the right-of-way, he applied his brakes and then the crash".

Referring to Opstad's view of the truck, he testified at the trial: "You could see part of it all the time . . ." that he saw the truck at various times "from the time he was 300 feet west of the intersection until he had reached a point 25 feet west of the intersection." He further testified: "When I was 250 or 300 feet from the intersection . . . he was approximately twice as far as I was". When asked: "During all that time you did not put your brakes on or did you?" he answered: "No, sir . . . I went right through". From the first time he saw the Chevrolet until he reached the intersection, "he must have been driving between 60 and 70" and when asked: "And the speed of the Chevrolet pick-up never slowed down at all, it kept going at the same speed?" Opstad answered: "It seemed to be going at the same speed". Later, however, he testified that, when it was at point 0.2 (40 to 50 feet north of the intersection) "It was going at a pretty good speed . . . around 50, 45 or 50, in that neighborhood . . . it was going pretty fast". From these statements, it was a fair inference that Opstad knew that the plaintiff was approaching the intersection at a speed of 60 to 70 miles per hour and that plaintiff did not reduce or alter the speed of the truck. The fact that the witness gave contradictory testimony merely presented an additional question of fact and entitled the jury to accept or reject whatever version it chose. ( People v. Crownover, 34 Cal.App. (2d) 7 [ 92 P.2d 929].)

The majority opinion states that immediately prior to the accident the truck swerved from the right hand side to the left hand side of Gold Queen Road, but the police officer who inspected the premises testified that he found no marks indicating a swerving of the truck prior to the impact. A map of the premises was introduced in evidence upon which Opstad in the presence of the jury located the position of the truck on the map when it was at a point 40 to 50 feet north of the intersection, and again where it was after the impact. In answer to the question what course did the Chevrolet take from the point 0.2, his answer was, "Well, it was in the center of the road and he was on the left and right and all over the road". If the jury believed that plaintiff drove at 70 miles per hour and was in the center of the road and on its right and left and "all over the road" they would have been justified in inferring that plaintiff was helpless to avoid a collision and in concluding that Opstad perceived plaintiff's predicament or by the exercise of ordinary care should have perceived it. ( Wallis v. Southern Pac. Co., 184 Cal. 662, 673 [ 195 P. 408, 15 A.L.R. 117]; Girdner v. Union Oil Co., 216 Cal. 197 [ 13 P.2d 915]; 45 Cor. Jur. 990, sec. 542. See, also, discussion, 2 Cal. Jur. Supp. 156, sec. 104.) Hence it was the duty of the court to instruct, as was done, upon the doctrine of the last clear chance. The fact that Opstad never saw the person of Johnson prior to the impact is of little consequence in view of the following facts: (1) the truck when first seen by Opstad was travelling 60 to 70 miles per hour; (2) the truck was driven on a paved boulevard 21 feet wide; (3) as Opstad arrived at the intersection, he was driving slowly upon a dirt road 28 feet wide; (4) when the truck was 40 to 50 feet north of the intersection Opstad saw that it was going 60 to 70 miles per hour; (5) at the time Opstad arrived at the west line of the intersection, the truck was only 25 feet north of the intersection or was at the intersection and its speed was either "reduced" to 75 feet per second, or it had not changed its speed from 105 feet per second; (6) from his position, according to his own testimony, Opstad saw that the truck was "all over the road" after it passed the point 0.2 or that it continued straight, either of which evidenced ignorance of his danger; (7) Johnson never sounded any warning signal of approach.

There was no question of plaintiff's negligence and of its continuance to the moment of the accident. From the facts before the jury, they determined under proper instructions that plaintiff was in a position of danger from which he could not extricate himself by the exercise of ordinary care; that plaintiff was unconscious of his own peril; that Opstad realized plaintiff's peril, or in the exercise of ordinary care should have known it and should have exercised the last clear chance to avoid injuring plaintiff.

In my opinion the cases of Girdner v. Union Oil Co., 216 Cal. 197 [ 13 P.2d 915], and Center v. Yellow Cab Co., 216 Cal. 205 [ 13 P.2d 918] justify the jury's verdict. It should not be expected that the facts which constitute the bases of those decisions would be identical with the facts of the case under consideration. The question is whether or not the facts of the instant case are such as would warrant the application of the principle announced by those authorities. In both Girdner v. Union Oil Co. and Center v. Yellow Cab Co., the defendant saw the perilous position of the plaintiff; in each of them the defendant perceived that the plaintiff was unconscious of his peril and that plaintiff could not be relied upon to avert the collision. By the exercise of reasonable care Opstad would have seen that plaintiff could not, by the exercise of extraordinary care, have stopped his truck before crossing the intersection and could have observed that plaintiff was unaware of his own peril. Surely, it cannot be the law that one in Opstad's position as he entered the intersection could shut his eyes to the danger of Johnson's flying truck and avoid his obligation by declaring that he did not see it or that he himself had the right of way. It was Opstad's duty to avoid an impact if he had the last clear chance to do so. It cannot be said that the negligence of plaintiff was the proximate cause of his injuries for the reason that if defendant had the last clear chance to avoid the injury, the chain of causation, begun with plaintiff's contributory negligence, was broken and defendant's refusal to act to avoid an impact became the proximate cause. "Whether the negligence is the proximate or remote cause depends upon the facts in the particular case". ( Center v. Yellow Cab, supra; Girdner v. Union Oil Co., supra; Carrillo v. Helms Bakeries, 6 Cal.App. (2d) 299 [ 44 P.2d 604]; Palmer v. Tschudy, 191 Cal. 696 [ 218 P. 36].) In considering the foregoing authorities, the majority opinion has erred in concluding as a matter of law that Opstad had no knowledge of the fact that Johnson was unaware of his peril, whereas it was a fact to be determined by the jury whether plaintiff was in a position of peril from which he could not extricate himself; whether Opstad could perceive, or by the exercise of ordinary care should have perceived that plaintiff was unaware of his peril, and whether by continuing across the highway Opstad would probably cause a collision, or by stopping he could avoid it. Plaintiff's negligence is not the proximate cause of his injuries where he was oblivious of his danger and where the defendant, on seeing his plight and that he was unaware of it, had the power by the exercise of ordinary care to avoid a collision and failed to exercise his last clear chance to avoid the accident.

The cases relied upon by appellant are not in point and hence do not control. ( Young v. Southern Pac. Co., 189 Cal. 746 [ 210 P. 259]; Behne v. Pacific Elec. Ry. Co., 30 Cal.App. (2d) 437 [ 86 P.2d 843]; Bogardus v. Snyder, 17 Cal.App. (2d) 411 [ 62 P.2d 153]; Leblanc v. Coverdale, 213 Cal. 654 [ 3 P.2d 312]; Keyes v. Hawley, 100 Cal.App. 53 [ 279 P. 674].) In Behne v. Pacific Elec. Ry. Co., supra, the doctrine was not applicable because there was no evidence as to when plaintiff reached a position when the doctrine of last clear chance could be applied. In Bogardus v. Snyder, supra, two cars had collided at an intersection, plaintiff going in excess of 20 miles per hour, defendant in excess of 30 miles per hour. It was clear that the defendant did not have a chance to avoid the accident by the exercise of ordinary care; the plaintiff had a better chance to avoid the accident than did the defendant who was driving more slowly. In LeBlanc v. Coverdale, the doctrine did not apply as "the question of plaintiff's negligence was rightfully left to the jury, and its determination thereof was, in our opinion, in accordance with the great preponderance of the evidence". In the case of Keyes v. Hawley, 100 Cal.App. 53 [ 279 P. 674], "because of the want of any proof of negligence on the part of the appellant" (defendant) the judgment was reversed. The cases of Erwin v. Morris, 10 Cal.App. (2d) 186 [ 51 P.2d 149], and Wallis v. Southern Pac. Co., 184 Cal. 662 [ 195 P. 408, 15 A.L.R. 117], are also distinguishable. In the Erwin case, plaintiff was parked upon the right side of the highway to repair his windshield wiper. The defendant approached plaintiff properly and at a point about 60 feet behind plaintiff, defendant pulled across the center of the highway in order to pass plaintiff's parked car. In the course of passing, her car skidded into plaintiff's car. It was obvious that the defendant did not have the last clear chance to avoid colliding with the plaintiff after defendant's car began to skid. By the exercise of no amount or degree of care could the defendant have avoided striking plaintiff's car after her own car began to skid. In the Wallis case, the engineer used every means available to stop his train. He thereby avoided liability that might have arisen because of the last clear chance. In the case of Basham v. Southern Pac. Co., 176 Cal. 320 [ 168 P. 359], when the fireman discovered that the driver of the wagon approaching the track was inattentive, he gave urgent orders to the engineer to stop. He had no reason to realize the danger sooner or had no "cause to realize it sooner". Hence in these cases the last clear chance doctrine never came into operation.

The majority opinion compares the facts of the instant case to those in the case of Richardson v. Ribosso, 120 Cal.App. 641 [ 8 P.2d 226], where the doctrine was not applied. In that case, the defendant, driver of an automobile, was proceeding southerly along a public street where he observed a minor child playing on the sidewalk on the opposite side; he saw him start running obliquely across the street toward a point in front of defendant's car. The car was travelling at 10 miles per hour. That case was submitted to a jury which held that the boy was guilty of contributory negligence and the defendant was excused from the application of the doctrine of last clear chance for the reason that he had passed the point on the course upon which the boy was travelling and he did not see and had no reason to anticipate that the child would continue on and run into the rear end of defendant's car. Ribosso, having driven past the point in line with the Richardson boy, had no reason to suspect that the child would continue without looking. But in the case of the plaintiff Johnson, Opstad had arrived at the intersection; he not only heard but actually saw Johnson's car travelling more than 500 feet at a speed ranging, according to his testimony, from 70 to 45 miles per hour. In the course of that travel, he saw it "all over the road" and in view of the fact that it was driving upon a paved boulevard at an excessive speed, it was a question of fact for the jury to determine whether Opstad "knew", or in the exercise of ordinary care should have appreciated that Johnson was in a position of peril from which, for any reason, he could not extricate himself and whether Johnson was unaware of his peril and whether Opstad had a last clear chance to avoid injuring him.

To make it clear, then, it was for the jury to determine in the first place and for the trial judge on the new trial proceedings in the second place, whether when Johnson reached the intersection, he was able by the vigilant use of his powers to extricate himself to avoid injury and whether Opstad knew or had good reason to believe that Johnson was unconscious of his peril. The rule is stated in the case of Wallis v. Southern Pac. Co., supra, as follows: "In order to make the defendant liable, notwithstanding contributory negligence of the plaintiff, the defendant must not only be aware of the danger in time to avert it but must also know or have reason to believe that the plaintiff is oblivious of the danger and is in a position from which he cannot extricate himself". (See Girdner v. Union Oil Co., supra.)

The majority opinion, in arguing the technical rights of Opstad to proceed across Gold Queen Road because he arrived at the intersection ahead of plaintiff takes from the jury its prerogative of determining whether Johnson was unaware of his own peril and of determining whether Opstad perceived that Johnson was oblivious of his peril. This has the effect of taking from the plaintiff his right to have his case determined by a jury. Appellate courts must be on their guard not only to protect the substantive rights of litigants but they must be alert to protect the right of a litigant to have questions of fact determined by the jury if they have been properly submitted to a jury.

From the record in this case, the jury had the right to draw inferences that would support their verdict. "Where mandatory presumptions are not excluded, it is the right and duty of the jury to draw such reasonable inferences from the evidence as may appeal to and satisfy their minds". ( Thomas v. Visalia Elec. R. Co., 169 Cal. 658 [ 147 P. 972].) In the case of Rovegno v. San Jose K. of C. Hall Assn., 108 Cal.App. 591 [ 291 P. 848], it is said: "In California inferences in themselves constitute a recognized class of indirect evidence which a court or jury may not disregard. (Code Civ. Proc., secs. 1957, 1958.) Furthermore, `upon a trial of a case the jury is to find not only the facts but also the inferences from them, if any may properly be drawn. . . . When an inference is supported by the evidence and is not opposed to human experience and reason, it cannot be disturbed by an appellate court'".

In the case of Hamilton v. Pacific Electric R. Co., 12 Cal. (2d) 598 [ 86 P.2d 829], the right of the plaintiff to recover depended upon whether or not the defendant had given reasonable inspection of its waiting room. The only evidence on the matter of inspection was by the plaintiff who testified that in the 20 or 30 minutes during which plaintiff was in the waiting room of the defendant "she did not observe" that any person either entered into or departed from the waiting room. In deciding that case, Mr. Justice Houser stated: "From a consideration of the foregoing, it would seem well established not only that plaintiff had sufficient evidence to sustain a judgment in her favor, but also that it was within the province and power of the trial court to draw therefrom the inference that the defendant had not performed its duty in giving a reasonable inspection to the premises in question. . . . It may be confidently declared that, founded upon the evidence, the jury not only is authorized to make any logical and reasonable deduction, but also that the jury is the exclusive judge of the weight and value of the inference that may be drawn from it; furthermore, as a corollary thereto, that any attempt on the part of an appellate court to draw an inference of fact constitutes `a usurpation of the province of the trial court! The fact that some inference other than that which has been drawn by a jury may appear to an appellate tribunal to be the more reasonable affords no sufficient reason for disturbing the inference in question. It also appears to be well established that notwithstanding the fact that the evidence upon which the inference is founded is undisputed or without conflict, an appellate court has not the power to draw an inference different from that which the jury has deduced. `The question of negligence is one of fact for the jury and the finding of the jury cannot be overturned by this court where the evidence is conflicting or where, although the evidence is without conflict, different inferences may reasonably be drawn from it.' ( Anderson v. Los Angeles Transfer Co., 170 Cal. 66, 67 [ 148 P. 212].) `This court has frequently held that even though all the facts are admitted or uncontradicted, nevertheless, if it appears that either one of two inferences may fairly and reasonably be deduced from those facts, there still remains in the case a question of fact to be determined by the jury (or by the trial judge where the case is tried without a jury) and that the verdict of the jury or the finding of the trial judge thereon cannot be set aside by this court on the ground that it is not sustained by the evidence. . . .' ( Mah See v. North American Acc. Ins. Co., 190 Cal. 421, 426 [ 213 P. 42])".

In the recent case of Weiand v. Southern Pac. Co., 34 Cal. App. (2d) 500 [ 93 P.2d 1023], Weiand was killed when he was knocked off a step ladder on a freight car by a caboose "spotted" too close to the track on which his train was moving. The evidence of the accident was circumstantial. It was contended that there was no evidence that the negligence of defendant was the proximate cause of the accident. Commenting thereon, the court said: "Obviously, if plaintiff has failed to make out a case for the jury on either of two theories, no recovery can be had. If, however, plaintiff has proved sufficient facts to justify a verdict upon one theory, the fact that there may be one or more other seemingly rational explanations of the episode in no manner precludes a recovery or invalidates the verdict. These are mere matters of argument to be presented to the jury". Likewise, in the case of Sherman v. Southern Pac. Co., 34 Cal.App. (2d) 490 [ 93 P.2d 812], Sherman was killed when he was thrown from the foot board of an engine upon which he was riding, due to an alleged defective cutting lever. The evidence was all circumstantial. The court said: "In this case, there is an uncertainty about the fact that the bracket holding the cutting lever gave way when decedent took hold of it and that he fell as a result. An inference that he fell when mounting the foot board was reasonably dispelled when it appeared in evidence from decedent's own statement just before he died that the lever broke "and that is why I fell. . . ." It was necessary to prove by substantial evidence that the appliance failed in the purpose for which it was designed. This substantial evidence might well be the reasonable inference drawn from the implied findings of the jury of the proven facts which overcame any conjectural inference or mere guess.

"When no conflict in the evidence appears, but there may be a conflict as to the inference which may be drawn from such evidence, unless the inference that sustained the verdict was conjectural, appellate courts will not interfere. The test is: whether or not the inferences which may be drawn from the evidence to sustain the verdict are reasonable". ( Sherman v. Southern Pac. Co., supra.) All conflicts must be resolved in favor of the respondent and all reasonable and legitimate inferences may be indulged to uphold the verdict, if possible. Where two or more inferences can reasonably be deduced from the facts, the reviewing court is without power to substitute its deductions for those of the jury or the trial court. ( Crawford v. Southern Pac. Co., 3 Cal. (2d) 427 [ 45 P.2d 183]; Treadwell v. Nickel, 194 Cal. 243 [ 228 P. 25]; Bancroft-Whitney Co. v. McHugh, 166 Cal. 140 [ 134 P. 1157]; Wing v. Kishi, 92 Cal.App. 495 [ 268 P. 483].)

Application of the doctrine of the last clear chance in cases arising from the collision of motor cars should not be unduly restricted by judicial decision. Not only is this indicated by the language in the Wallis and Girdner cases, supra, but the appalling and unending parade of destruction of life and property demands a liberal observance of the humanitarian doctrine. It is observed by the courts of more than twenty states of the Union, by the federal courts, and by those of Canada and of England. (45 Cor. Jur. 990.) It is more nearly consonant with the moral responsibilities cast upon those who are permitted to operate an enginery of destruction upon paved highways than is the commonly accepted concept of the California doctrine which arose in the days when the covered wagon collided with the locomotive. But within the purview of our own cited decisions, the facts of the instant case do not justify this court in defeating the verdict of a jury on questions of fact properly submitted to them. To do so is to reject the right of trial by jury upon a matter concerning which a jury is competent to try. Travelling at a slow rate of speed and having the ability to stop within a distance of a few feet, he had the only opportunity to avoid the collision. ( Bagwell v. Pacific Elec. Ry Co., 90 Cal.App. 114 [ 265 P. 517].) He could have avoided the collision by a simple application of his brakes. This would have been a much simpler process than his present defense. ( Cady v. Sanford, 57 Cal.App. 218 [ 207 P. 45].)

The judgment should be affirmed.