Johnson v. Southwestern Engineering Co.

WOOD, J. This appeal is prosecuted by John Opstad from a judgment entered against him on his cross-complaint — 624 — after a jury trial. The litigation resulted from a collision of two automobiles at the intersection of two desert roads. Appellant filed an action in Kern County on July 29, 1938, naming as defendants Harvey Johnson, the driver of one of the ears, and A. J. Bruce, its owner. On August 1, 1938, Johnson filed the action in which this appeal is taken, naming as defendants appellant Opstad and his employer, Southwestern Engineering Company. Appellant filed a cross-complaint and this action was brought to trial. The jury returned verdicts in favor of the plaintiff Johnson and the cross-defendants. An appeal was taken by both Opstad and Southwestern Engineering Company but a stipulation has been filed providing for the satisfaction of the judgment in favor of Johnson on his complaint and specifically setting forth that Opstad retains the right to prosecute his appeal from the judgment entered on his cross-complaint. The accident occurred on June 9, 1938, at about 11:00 A. M. at the intersection of two roads in the desert. Gold Queen Road, which runs north and south, is 21 feet in width and is paved to the intersection. Cactus Queen Road extends east and west and is a dirt road 28 feet in width. At the time of the collision the weather was clear and the roads were dry. Opstad was driving a 1932 Packard sedan in an easterly direction on Cactus Queen Road and Johnson, who was driving a 1932 Chevrolet pick-up truck, was traveling south on Gold Queen Road. Both roads were lined on each side by sage brush approximately three and one-half feet high and were from eighteen inches to two feet below the grade of the land at the northwest corner of the intersection. The only testimony as to the manner in which the accident occurred was that of Opstad—plaintiff Johnson having no memory of any of the events prior to the actual impact of the two cars and having been totally unaware of the presence of Opstad’s car at the intersection. From the testimony of Opstad it appears that when he had reached a point from 250 to 300 feet from the intersection he first observed the truck driven by Johnson, which was then about 500 or 600 feet north of the intersection. Opstad was then driving at a speed of from 25 to 30 miles an hour while Johnson’s speed was between 60 and 70 miles an hour. Upon reaching a point about 25 or 30 feet from the intersection Opstad again observed the truck, which was — 625 — then 40 to 50 feet from the intersection and was traveling at a reduced speed of 45 to 50 miles an hour. Just as he entered the intersection Opstad again saw the truck, which was then 25 feet from the intersection. He proceeded through the intersection without again looking at the truck until he reached a point in the southeast part of the intersection near the eastern boundary of Gold Queen Road, where the truck collided with his car. Immediately prior to the accident the truck swerved from the right hand (west) side to the left hand side of Gold Queen Road, thereby causing the right front corner of the truck to strike the left side of Opstad’s car. There is no evidence that Opstad ever saw Johnson’s person, before the impact, the only testimony being that he observed the truck. Johnson made the following statement to Opstad at the scene of the accident: “I must have fallen asleep ... I was going too fast ... it was all my fault ... I didn’t see your car.” Upon this state of the evidence the court, at Johnson’s request, instructed the jury relative to the doctrine of last clear chance. It is claimed on this appeal that the evidence fails to disclose the existence of all of the elements necessary for the application of this doctrine and that as a result the court admitted prejudicial error in so instructing the jury. In Girdner v. Union Oil Co., 216 Cal. 197, at page 202 [13 Pac. (2d) 915], the court sets forth the elements which must be shown to exist before the doctrine of last clear chance may properly apply: ‘ ‘ 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; that this includes not only where it is physically impossible for him to escape, but also in cases wdiere he is totally unaware of his danger and for that reason unable to escape; 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 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.” If any one of these elements is not shown by the evidence to exist the doctrine of last clear chance is not applicable. In the Girdner ease the court pointed out that the failure of a defendant to use ordinary — 626 — care in circumstances where the doctrine of last clear chance is applicable may well be termed wilful and wanton and under such circumstances contributory negligence upon the part of the injured person will not defeat a recovery. It is clear that in the present action the evidence fails to establish all of the elements necessary to make applicable the doctrine of last clear chance. There is no evidence whatever that Opstad had knowledge that Johnson was in a position of danger and there is no evidence whatever that Opstad had knowledge that Johnson was unaware of the true situation. In Bogardus v. Snyder, 17 Cal. App. (2d) 411 [62 Pac. (2d) 153], the court in concluding that the doctrine of last clear chance did not apply observed: 11 But, if we take the stand that plaintiff was in a position of danger from which he could not extricate himself, because he was unaware of his danger, and hence could not bring ordinary care into play, then it appears that defendant did not know that he was so situated, because she did not know that plaintiff was unaware of his danger ... ” . The cases of Girdner v. Union Oil Co., supra, and Center v. Yellow Cab Co., 216 Cal. 205 [13 Pac. (2d) 918], which are relied upon by Johnson in support of his claim that the doctrine of last clear chance was properly applied, are easily distinguishable. In each of these eases the defendant actually saw that the plaintiff was unaware of his predicament. In the present case the dangerous predicament which Johnson was in was due solely to the fact that he was unaware of the situation—of which fact Opstad had no knowledge. Since all of the essential elements are not present, it was reversible error for the court to instruct the jury on the doctrine of last clear chance. (Erwin v. Morris, 10 Cal. App. (2d) 168 [51 Pac. (2d) 149]; Wallis v. Southern Pac. Co., 184 Cal. 662 [195 Pac. 408, 15 A. L. R. 117].) The only reasonable conclusion that may be reached from the evidence is that Opstad reached the intersection first after observing the approach of the truck and noting that its speed had been decreased from 60 to 70 to 45 or 50 miles an hour, that at no time prior to the accident did he know that Johnson was unaware of his situation, that in proceeding through the intersection he unquestionably had the right of way, that after his car had reached a point in the southeast part of the intersection there was ample room to — 627 — the rear of his car for Johnson’s truck to pass safely through the intersection, and that there was nothing in the situation which would cause him to believe that the truck would swerve to the left or wrong side of the road and thus collide with his car after he had reached a place of apparent safety near the east boundary of the intersection. The situation thus presented is similar in principle to that which the court had under consideration in Richardson v. Ribosso, 120 Cal. App. 641 [8 Pac. (2d) 226], where it was held that the doctrine of last clear chance was not applicable. In that case the defendant was driving an automobile along a street and while so doing observed the plaintiff’s minor son playing on the sidewalk and saw him suddenly start to run obliquely across the street upon which the defendant was traveling. The minor continued on his course without looking in the direction he was traveling and ran into the left side of the defendant’s automobile. The court appropriately observed at page 642 that: “The reasonable inference to be drawn from this evidence is that, after the defendant had passed the course upon which the boy was traveling, he had no reason to anticipate that the boy would continue without looking ... ” In the instant case it is apparent that, after Opstad had passed the center of the intersection, he had no reason to anticipate that Johnson would continue without looking and no reason to anticipate that he would suddenly veer from his proper course to the wrong side of the road. In the exercise of ordinary care Opstad was not called upon to anticipate that Johnson would violate the law by failing to maintain a lookout, by driving on the wrong side of the road and by failing to yield the right of way. It must be borne in mind that Opstad had no knowledge that Johnson had “fallen asleep”. The evidence of the physical facts as well as Opstad’s testimony compel the conclusion that Johnson was not in a position of danger from which he could not escape until after he had swerved his truck to the east side of Cactus Queen Road, at which time Opstad had traversed the greater part of the intersection. As Opstad approached the intersection he noted that the speed of the truck was less than it had been when he first saw it. If Johnson had continued in the course he was traveling while Opstad observed his approach to the intersection the collision would have been avoided. — 628 — O.pstad testified that he did not see the truck swerve from its former course. Manifestly, Opstad did not have a clear chance to avoid the accident. The doctrine of last clear chance ‘1 says to a negligent plaintiff that in spite of his lack of caution he will be protected against wanton, wilful or avoidable harm‘\ (Erwin v. Morris, supra.) The doctrine is not here applicable, for Opstad, not knowing that Johnson had fallen asleep, did not know that he was in a position of danger and did not have the opportunity of avoiding the collision. The judgment on the cross-complaint is reversed, cross-complainant to recover costs on appeal. MeComb, J., concurred.