Opinion
4-9-1951
SELINSKY v. OLSEN. Civ. 18193.
Crider, Runkle & Tilson, Los Angeles, for appellant. Edward Mosk, Hollywood, for respondent.
SELINSKY
v.
OLSEN.
April 9, 1951.
Rehearing Denied April 26, 1951.
Hearing Granted June 4, 1951. *
Crider, Runkle & Tilson, Los Angeles, for appellant.
Edward Mosk, Hollywood, for respondent.
WILSON, Justice.
This is an action for personal injuries. After a trial by jury a verdict was rendered in favor of defendant. The court granted plaintiff's motion for a new trial on the sole ground of errors of law. From this order defendant has appealed.
The only issue is whether the court erred in refusing to instruct the jury on the doctrine of last clear chance. The five necessary elements of that doctrine are fully stated and discussed in Korchak v. Pacific Electric Railway Co., 9 Cal.App.2d 89, 92, 48 P.2d 752; Girdner v. Union Oil Co., 216 Cal. 197, 202, 13 P.2d 915, and Darling v. Pacific Electric Railway Co., 197 Cal. 702, 707, 242 P. 703. The absence of any one of the elements renders the doctrine inapplicable and the case must be governed by the ordinary rules of negligence and contributory negligence. Korchak v. Pacific Electric Ry. Co., supra, 9 Cal.App.2d at page 93, 48 P.2d 752. The last clear chance rule presupposes that if plaintiff becomes aware of his danger he must thereafter exercise ordinary care for his own protection. Palmer v. Tschudy, 191 Cal. 696, 218 P. 36; McHugh v. Market Street Ry. Co., 29 Cal.App.2d 737, 743, 85 P.2d 467. The doctrine is not pertinent to a situation where, by their mutual carelessness, injuries ensue to one of two parties, both of whom are contemporaneously and actively at fault at the very moment of the injury. Young v. Southern Pacific Co., 189 Cal. 746, 755, 210 P. 259. If the negligence of the injured party was contemporaneous, concurrent, continuing and contributory up to the very moment of the impact the doctrine is not applicable. Center v. Yellow Cab Co., 216 Cal. 205, 207, 13 P.2d 918; Girdner v. Union Oil Co., supra, 216 Cal. at page 203, 13 P.2d 915; Rasmussen v. Fresno Traction Co., 138 Cal.App. 540, 550, 32 P.2d 1091.
Plaintiff's car was parked, headed north, on the easterly side of Crenshaw Boulevard a short distance north of 8th Street. Plaintiff testified he got into his car, looked into his rear-view mirror and saw cars standing at 8th Street. He moved out about two feet and looked back to see whether the cars were still standing and then moved farther, looked again, and his motor stalled. He also testified that during the time he was moving away from the curb he was watching a car that was parked in front of his car, in order to be certain he would not collide with it in turning out from the curb; that he was actually watching the latter car at the time the accident happened.
In Crenshaw Boulevard there are two lanes for north-bound moving traffic and one lane for parking. Defendant was traveling northerly in the right-hand lane next to the line of parked cars. He testified he was driving at between 20 and 25 miles an hour immediately before the accident; a car was traveling ahead of him in the same lane and another car in the lane to his left. He stated that when the front end of his car was about even with plaintiff's car the latter suddenly turned from the curb directly in front of defendant's car; he applied his brakes and tried to swerve to the left but plaintiff's car came out so quickly there was no chance to avoid the collision; he did not see plaintiff give any kind of hand-signal. Defendant stated that plaintiff's car was in motion at all times during the fraction of a second between the time he saw it and the impact. Defendant's car stopped within a few feet.
Obviously the doctrine of last clear chance is not applicable in this case. If, as plaintiff testified, his car stalled and he was unable to move, defendant did not know that fact and therefore was not aware of and had no means of realizing plaintiff's dangerous situation or his inability to escape. If plaintiff looked back he did not see what was to be seen since defendant's car was approaching. If he did not look back he was negligent in turning from his place of safety at the curb into a lane where traffic was moving. When plaintiff's car turned into the traffic lane defendant did not have a clear chance of avoiding the accident by the exercise of ordinary care since he did not know that plaintiff would continue to move into the traffic lane.
It is the rule in this state that the last clear chance doctrine is applicable as to a defendant only when he actually perceives the predicament and danger of the plaintiff in time to avoid the accident by the exercise of ordinary care. A person cannot be held liable upon the theory that he would have discovered the peril but for remissness on his part. New York Lubricating Oil Co. v. United Railroads, 191 Cal. 96, 101, 215 P. 72, and cases cited. Even if plaintiff was in a position of danger from which he could not extricate himself because he was unaware of his danger, defendant did not know plaintiff was so situated because he had no means of knowing that plaintiff was unaware of his danger. Johnson v. Southwestern Engineering Co., 41 Cal.App.2d 623, 626, 107 P.2d 417; Bogardus v. Snyder, 17 Cal.App.2d 411, 413, 62 P.2d 153.
Since defendant's car and other cars were traveling northerly in both lanes of traffic and since plaintiff's car was parked at the curb in a place of safety, defendant had the right to assume that plaintiff would exercise his faculties of observation and caution and would not change his position from one of safety to one of peril and recklessly expose himself to the danger of a collision with passing automobiles when it is obvious that with the slightest care he could have avoided the collision by waiting until moving traffic had passed. Korchak v. Pacific Electric Ry. Co., supra, 9 Cal.App.2d at page 93, 48 P.2d at page 754; Haber v. Pacific Electric Ry. Co., 78 Cal.App. 617, 631, 248 P. 741.
We cannot select fragmentary portions of the evidence and disregard the remainder in order to provide a foundation upon which to rest the rule of last clear chance, when considering the record as a whole such rule is inapplicable. Since all the necessary elements of the doctrine do not appear from the evidence it would have been reversible error to give an instruction thereon and the court therefore erred in granting the motion for a new trial on the sole ground that such instruction had not been given. Wallis v. Southern Pac. Co., 184 Cal. 662, 672, 195 P. 408, 15 A.L.R. 117; Johnson v. Southwestern Engineering Co., 41 Cal.App.2d 623, 626, 107 P.2d 417.
Order granting new trial reversed.
MOORE, P. J., and McCOMB, J., concur. --------------- * Subsequent opinion 237 P.2d 645.