Reese ex rel. Reese v. Proctor

GOULD, District Judge: The defendant appeals from an adverse verdict of the jury in an action growing out of an automobile-bicyclist collision at the intersection of DeVille Drive and 7000 South Street in Salt Lake County. 7000 South Street is a through east-west street. DeVille Drive joins 7000 South Street from the south and forms a “T” intersection. The plaintiff, a 15-year-old retarded boy, approached 7000 South Street in a northerly, direction along DeVille Drive. It is conceded that plaintiff failed to stop for the stop sign on the south side of 7000 South Street. The defendant was westbound along 7000 South Street in an automobile approaching DeVille Drive. To the de [221] fendant’s right and ahead of the plaintiff on the north side of 7000 South Street is a shopping center with parking lot and entrances off 7000 South, northward of DeVille Drive. The defendant testified that he saw plaintiff at the drain gutter on the south side of 7000 South Street traveling north, looking straight ahead. From the drain gutter to the impact point is a distance of 40 plus feet. The independent witness, a resident of the neighborhood, fixed plaintiff’s speed on his bicycle at about five miles per hour. An expert witness, by the use of skid marks from the defendant’s car and reaction time of ¿4 second, established a required stopping distance of 38 feet and a speed of 35 miles per hour on the part of the defendant. By mathematical calculation based upon the above evidence, the jury could reasonably find that defendant had the plaintiff within his range of vision, crossing from defendant’s left into defendant’s pathway, for 5.75 seconds. The defendant testified, apparently without reason therefor, that he thought plaintiff was going to turn left, although he had also testified that plaintiff was looking straight ahead. The defendant continued on and collided with plaintiff and plaintiff’s bicycle in defendant’s lane of traffic. There was no eastbound traffic on 7000 South Street. Upon this state of facts the trial court instructed upon the doctrine of last clear chance, and plaintiff recovered a verdict. The defendant asks reversal asserting that the issue of last clear chance should not have been given to the jury for determination and that in doing so the trial court committed prejudicial error. The issue therefore presented by the appeal is whether the court committed error in instructing the jury in respect to the doctrine of last clear chance. The last clear chance doctrine is applicable to a situation where plaintiff’s position of extricable peril has arisen from his own negligence only if the defendant actually knew of plaintiff’s extricable peril, Fox v. Taylor, 10 Utah 2d 174, 350 P.2d 154, and cases cited therein. The same rule stated by the text writers is: Where plaintiff himself could avoid danger by checking his approach to it or by stepping out of its path, but fails to do so because of negligent inattention, and defendant knows plaintiff’s position and realizes or has reason to realize his inattention, and after such knowledge and realization (actual or constructive) could have avoided injury by the use of reasonable care, then plaintiff is entitled to invoke the doctrine. Defendant relies on Donohue v. Rolando, 16 Utah 2d 294, 400 P.2d 12, to sustain his position for reversal. Donohue says that under the doctrine of last clear chance there [222] must be a clear and fair opportunity, not a mere possibility, to avoid the accident. In Donohue the bicyclist was traveling the same direction as the motorist, and was being overtaken by the motorist. As the motorist was about to pass the bicyclist, the bicyclist swerved suddenly to the left into the path of the defendant’s automobile and there was no clear and fair opportunity for defendant to avoid striking the cyclist. We recently applied that doctrine in Jones v. Knutson, 16 Utah 2d 332, 400 P. 2d 562. In Jones v. Knutson, supra, defendant bus driver first observed plaintiff’s peril when defendant stopped 400 feet from plaintiff’s car, but asked the court to consider defendant’s actions only during the last 70 feet of defendant’s travel prior to impact. We said there, and we say here, that we prefer to consider the facts from the time defendant entered the event. The trier of the facts had before it credible evidence that defendant actually knew of plaintiff’s inattention and took no action for a period of time that reasonably could be found to be 5.75 seconds. This gave defendant a clear and fair opportunity to avoid impact, but the defendant chose, unreasonably, we think, to believe that this inattentive plaintiff would turn his bicycle. The court properly submitted the six factual issues necessary to invoke the doctrine, to the jury for determination and they were determined against the defendant. The judgment of the District Court is affirmed. CALLISTER, C. J., and TUCKETT, J., concur. HENRIOD and ELLETT, JJ., having disqualified themselves, do not participate herein.