Rasmussen v. Fresno Traction Co. , 15 Cal. App. 2d 356 ( 1936 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

The plaintiff was injured in a collision between an automobile driven by him and a street car owned by the defendant company and operated by the defendant Zoerb. The accident occurred in the country near the city of Fresno at a point where West Avenue crosses a private right of way maintained by the Traction Company, upon which there are double tracks. The collision happened about noon while the plaintiff was driving south on West Avenue and the street car was proceeding east on the southerly of the two tracks. The country was open and either vehicle could be seen from the other for a distance of many hundred feet. On a former appeal (Rasmussen v. Fresno Traction Co., 138 Cal.App. 540 [32 P.2d 1091]) a judgment for $2,000 in favor of the plaintiff was reversed. On a retrial a jury awarded the plaintiff $15,000, and from the judgment which followed the defendants have appealed.

The main ground for reversal urged by the appellants is that the doctrine of last clear chance is not applicable under the facts shown, and that the court erred in submitting that issue to the jury. While the respondent concedes that he was guilty of contributory negligence as a matter of law he insists that he was entitled to have the last chance issue submitted to the jury under our decision on the former appeal, and that this has become the law of the case.

[1] Since the doctrine of the law of the case rests upon the existence of error it is not favored and it rarely applies to matters of evidence. (Allen v. Bryant, 155 Cal. 256 [100 P. 704].) The doctrine will not apply where a substantial difference appears in the evidence on the second trial. (Dewees v.Kuntz, 130 Cal.App. 620 [20 P.2d 733]; Sichterman v.R.M. Hollingshead Co., 117 Cal.App. 504 [4 P.2d 181].)

[2] In our former opinion, the evidence was thus summarized:

"Respondent testified that he lived on a chicken ranch about a mile north of the intersection; that at about 11:30 o'clock on the morning of February 22d he left his home in his automobile to deliver half a case of eggs to a customer on Belmont Avenue, a short distance southerly from the intersection; that the eggs were in a packing case resting on the floor between the front and rear seats of the automobile; that he had traveled over the intersection a great many times and was familiar with it; that he drove southerly on West Avenue at a speed of about fifteen miles an hour; that when he was at a point about ten feet northerly from the southerly tracks he brought his automobile almost to a stop and shifted into second gear; that he looked in both directions for approaching cars; that none was approaching from the east but that the car involved in the accident was about three hundred feet westerly from the intersection and traveling easterly on the southerly tracks; that he did not know the speed at which the street car was traveling; that believing he could cross safely he proceeded at a speed of about five miles per hour without again looking at the approaching street car; that while traveling in second gear at a speed of five miles an hour he could have stopped his automobile almost instantly; that the crossing was rough and he continued at the rate of five miles an hour in order to keep from breaking the eggs; that the street car struck the rear of his automobile, practically demolishing it and seriously injuring him. The forward eight feet of the automobile was not injured in the collision.

"Zoerb testified that he was proceeding in an easterly direction on the southerly tracks of the Traction Company's right of way at a speed of twenty miles an hour; that he was making change for a passenger; that when this was completed he was about seventy-five feet from the crossing; that he then looked ahead and saw respondent's automobile traveling southerly on West Avenue at a point about one hundred twenty-five feet from the intersection and at a speed of from thirty to thirty-five miles per hour; that he proceeded on his way and when the street car was about thirty feet from the oiled portion of the intersection the automobile was traveling southerly without reducing its speed; that he then for the first time realized that respondent was intending to proceed across the intersection and that a collision was imminent; that he applied his air brakes, rang the gong of the street car but could not stop and the collision ensued; that the street car traveled forty feet after it came into contact with the automobile."

Zoerb also testified on the first trial that he did not apply his emergency brakes at the time he applied his air brakes.

While most of the evidence on the second trial is about the same as that just given, certain changes and additions now appear. On the second trial the respondent testified that the place where he changed to second gear and saw the street car coming was 10 feet north of the first rail of the northerly track, which would be some 10 feet farther away from the track on which the street car was coming; that when he observed the street car it was between 200 and 300 feet away; that he proceeded across the tracks at five miles per hour or less; that at the speed at which he was going he could have stopped his automobile immediately; and that on the morning of the accident he was familiar with the warning signs at the approach to this railroad crossing. At the second trial the motorman testified not only that he rang his gong but that he kept "hammering" it from the time he first saw the automobile until it was too late to avoid the accident. While he again testified that he applied his air brakes when he was about 30 feet from the crossing, there was also considerable evidence at the second trial to the effect that another brake, called the emergency brake, which he did not apply, was for use only when the air was not working; that it could not be used at the same time the air was being used; and that the air brake which he applied was the most efficient way to stop the car.

There was also evidence that the street car in question weighed 16 tons; that at a speed of 20 miles an hour it would travel 29.2 feet per second; that at five miles per hour a car would travel 7.3 feet per second; that at 20 miles per hour this street car could not be stopped in less than 75 or 80 feet; and that after the collision the street car did not stop until it was 40 feet beyond the east line of the intersection.

An exceedingly close case was presented on the former appeal and in view of the new evidence, that the street car was not actually stopped until it had gone 70 feet, plus the width of West Avenue, after the motorman realized that a collision was imminent, that he used the best brake he had, that the respondent was farther away when he saw the street car, and that under his own testimony the street car may have been 100 feet nearer when he saw it, it cannot be said that the evidence on the two trials was identical and, in our opinion, the doctrine of the law of the case should not be here applied. The new evidence affects the ability of the motorman to stop his car after he actually saw the respondent's automobile and also affects the question of the ability of the respondent to avoid the accident after he saw the approaching street car. Under the new evidence a somewhat different question is presented as to whether the jury could reasonably have concluded that Zoerb, when he first saw the automobile when 75 feet from the intersection, also realized at that time that a collision was imminent and that the respondent could not extricate himself, and that he could then have applied his brakes in time to avoid the accident. A somewhat different question is also presented as to the ability of the respondent to have avoided the accident by the use of ordinary care when he observed the street car while he was about 10 feet farther from the tracks upon which it was running and when, under his own testimony, it may have been 100 feet closer when he observed it. If it might be held, under the evidence produced at the first trial, that his position on the northerly rail, when he saw the street car, was so close to the danger as to give him no chance to observe its speed or to act quickly enough to avoid the collision, the evidence on the second trial presents a difference which is substantial and which both justifies and demands serious consideration. [3] As has frequently been said, the doctrine of the last clear chance means exactly what the words imply and the essence of the rule is that it is applicable only where the defendant, notwithstanding the plaintiff's negligence, has a clear chance, after realizing that the plaintiff cannot escape, to avoid the accident by the exercise of ordinary care, and where the plaintiff cannot avoid it by the use of such care.

In applying the rule in certain cases the courts have used language which has led to some confusion and perhaps to some modification. While it has always been held that the rule did not apply unless the defendant actually knew that the plaintiff was in a position of danger it has more recently been held that the jury is not required to take the defendant's word that he did not see but that, under proper circumstances, the jury may find that he did see, and that the jury, having found on proper evidence that he actually saw, may infer that he should then have known that the plaintiff could not escape. Even more recently it has been held that where a plaintiff is unaware of the situation or oblivious to his danger, this is equivalent, for the purposes of the rule, to a physical inability to escape. While the law is and should be that a defendant who has a clear opportunity to do otherwise may not run down and injure a plaintiff merely because the latter is unaware of his dangerous position, we cannot agree that this humanitarian doctrine has been, or should be, so modified as to permit it to be used to reward a plaintiff for disregarding what he did see, where he had a better chance to avoid the accident than had the defendant, and under circumstances where it must be said, in all fairness, that any finding that the defendant had a clear chance to avoid the injury, and the plaintiff had none, must rest more upon the whim or prejudice of a jury than upon the actual facts shown by the evidence.

In several of the more recent cases the fact that the plaintiff was unaware of his position of peril has been considered. The last chance doctrine was applied where a street car ran down a plaintiff who was walking along the car tracks in a city (Darling v. Pacific Electric Ry. Co., 197 Cal. 702 [242 P. 703]) and where a plaintiff was driving along a street car track on a city street. (Berguin v. Pacific Elec. Ry. Co., 203 Cal. 116 [263 P. 220].) In Girdner v. Union Oil Co., 216 Cal. 197 [13 P.2d 915], the doctrine was applied to a truck driver who observed that the plaintiff did not look in his direction and under circumstances where the defendant unquestionably had an ample opportunity to avoid the accident by stopping or turning aside. In Center v. Yellow Cab Co.,216 Cal. 205 [13 P.2d 918], the defendant cab driver, proceeding in second gear at 10 to 14 miles an hour, saw when he was 20 feet away that the plaintiff pedestrian was looking in the opposite direction and was totally unaware of his approach. In Smith v.Los Angeles Ry., 105 Cal.App. 657 [288 P. 690], the plaintiff was driving a long heavy wagon across the street car tracks at an intersection of city streets. There was no evidence that the plaintiff had seen the street car and the circumstances were such that the motorman must have seen the wagon and must have known that the same could not be speeded up in time to avoid a collision. In Handley v. Lombardi, 122 Cal.App. 22 [9 P.2d 867], the plaintiff, driving a truck, stopped before entering a street intersection. He then saw the defendant's automobile approaching from his right about 300 feet away but proceeded to cross the intersection at a speed of 10 or 12 miles per hour. His truck was struck in the rear when it had almost cleared the intersection. It not only appeared that the defendant must have seen the truck but that he had ample opportunity to avoid a collision by slowing down or turning aside. In all of the above cases it clearly appeared that the defendant had an ample opportunity to avoid the accident by the use of ordinary care, and there was at least some evidence justifying the inference that the plaintiff had no such opportunity. Moreover, all of these cases involved accidents on city streets.

[4] We are here concerned with a different situation involving street car tracks on a private right of way outside of a city. Different rules of law are applicable to such a situation which directly affect the conduct of both parties to this accident. The rules applicable to a crossing over the tracks of a steam railway applied here and imposed upon the respondent the duty to look, to listen, to stop if necessary, and to yield the right of way to an approaching car, whereas the motorman had the right to presume that the other would perform this duty, and was not bound to check the rightful speed of the street car until he had reason to believe that the other was not going to stop. (Billig v. Southern PacificCo., 192 Cal. 357 [219 P. 992].)

In New York L. Oil Co. v. United Railroads, 191 Cal. 96 [215 P. 72], the facts were very similar to the instant case. When the plaintiff was 25 feet from the track he observed the electric car approaching 500 feet away but proceeded to cross the tracks at five miles per hour at which speed he could have stopped within three feet. The court in holding the plaintiff guilty of contributory negligence pointed out the well-known rules governing railroad cases and observed that the plaintiff, although fully aware of the approach of the car, closed his eyes to the danger necessarily involved and blindly drove into the path of the oncoming car. In holding that the doctrine of last clear chance did not apply to such a situation the court said:

"It is a well-settled rule in this state that this doctrine is only applicable to a defendant who actually perceived the predicament and danger of a plaintiff in time to have avoided the accident by the exercise of due diligence. A defendant cannot be held liable upon the theory that he would have discovered the peril of the other but for remissness on his part. (Herbert v.Southern Pacific Co., 121 Cal. 227 [53 P. 651]; Harrington v. Los Angeles Ry. Co., 140 Cal. 514 [74 P. 15, 98 Am. St. Rep. 85, 63 L.R.A. 238]; Thompson v. Los Angeles etc. Ry.Co., 165 Cal. 748 [134 P. 709]; Tucker v. UnitedRailroads, [171 Cal. 702, 154 P. 835] supra.) Conceding, however, that the motorman, while he was yet some distance from the point of collision, was aware of the approach of the truck, nevertheless it is an undisputed fact that the driver of the truck was likewise aware of the approach of the car, and that he could have brought the truck to a standstill within a distance of three feet. There was a concurrent duty, as a matter of law, upon the part of the driver of the truck to stop, if possible, before the actual collision occurred. Obviously the truck proceeding at the slow rate of speed mentioned, and with the ability to stop within the short distance of three feet, had the greater opportunity to avoid the collision. And so long as the negligence of the driver of the truck in continuing on in his course to the point of crossing the tracks of the defendant was contemporaneous and concurrent with that of the defendant's motorman, plaintiff cannot rightfully rest its case upon the doctrine of last clear chance."

In Bagwill v. Pacific Electric Ry. Co., 90 Cal.App. 114 [265 P. 517], another case somewhat similar in its facts, there was evidence that the plaintiff's truck was coming up to the track when the electric cars were 300 feet away and that it started on the tracks when the cars were 150 feet away and that the motorman so applied his brakes that they took effect about 75 feet from the point of contact. In holding that the doctrine of last clear chance was not applicable the court said:

"It would be and is a matter of common knowledge that even if we assume that thought and action were simultaneous on the part of the motorman, it would take a little time for the brakes to take hold after the motorman had operated whatever mechanical devices were employed to effectuate the braking. The truck was at no time stalled on the track, but was moving all of the time and was unloaded; and it is a fair inference that with knowledge of the train's approach, if the driver attempted the crossing, as he did, he would be able to negotiate the passage in safety. It was probable that even then he could have accelerated his pace and gotten safely over. (Young v. Southern Pacific Co., 182 Cal. 369, 380 [190 P. 36].)

"We have a four-car train moving 45 miles per hour on its own right of way. The motorman is confronted with a situation which requires his action to avoid striking an object within 150 feet. The situation calling for immediate action is brought about through no fault of the motorman. Within 75 feet he has applied all of his brakes sufficient to cause the train to slide. This means that he has brought about the brake application within practically one second of time. Certainly the doctrine of last clear chance never meant a splitting of seconds when emergencies arise. There seems still to be some misconception of this doctrine of last clear chance. It was not devised as a last resort to fasten liability on defendants. Like the body of the law of negligence, to which the doctrine is appended, the test remains as that of ordinary care under all of the circumstances. The law in many of its workings indicates great charity and solicitude for individual rights. It says to a negligent plaintiff that in spite of his lack of caution he will be protected against wanton, wilful or avoidable harm. But, on the other hand, it penalizes no innocent person. We are not to tear down the facts of a case and rebuild the same so that, by a trimming down and tight-fitting operation, something can be constructed upon which may be fastened the claim of last clear chance. The words mean exactly as they indicate, namely last clear chance, not possible chance. The Supreme Court has not left us to speculate on the application of the doctrine. (Palmer v. Tschudy,191 Cal. 696 [218 P. 36]; Young v. Southern Pacific Co.,182 Cal. 369 [190 P. 36]; Wallis v. Southern Pacific Co.,184 Cal. 662 [195 P. 408, 15 A.L.R. 117]; Gainer v. UnitedRailroads, 58 Cal.App. 459 [208 P. 1013].)"

In Young v. Southern Pacific Co., 189 Cal. 746 [210 P. 259], the court said:

"Obviously, if both parties to an accident could, by the exercise of ordinary care, have avoided it, neither can be said to have had the last clear chance. It is only when a defendant charged with the negligent infliction of the injury, knowing plaintiff's peril, could and the injured plaintiff could not have avoided the injury that the defendant is liable. The liability is placed upon the party inflicting the injury only if immediately before the actual infliction of the injury the injured person was in such a situation as to be unable by the exercise on his part of reasonable and ordinary care to extricate himself and vigilance on his part would not have averted the injury. . . .

"The plaintiffs having failed to show in evidence that the deceased could not have altered the direction, stopped, retarded or accelerated the speed of his motorcycle after the train crew first saw him on the passing track and thereby, of his own endeavor, have avoided the accident, it must be held that the negligence of the deceased was contemporaneous, concurrent and continuing down to the very moment of the collision. This being so, the plaintiffs failed to support the burden of proof put upon them by the law to show, as part of their case in chief, that the defendant had the last clear chance to avoid the accident."

In Gundry v. Atchison, T. S.F. Ry. Co., 104 Cal.App. 753 [286 P. 718], this court said:

"It would be little short of ridiculous to hold that the law requires a traveler to look and listen, and even to stop, if necessary, at a railroad crossing, in order to ascertain if a train is approaching, but does not require such a traveler to refrain from attempting to cross in front of the train, when he actually sees it approaching. The United States Supreme Court in the case of Baltimore Ohio R.R. Co. v. Goodman, 275 U.S. 66 [48 Sup. Ct. 24, 25, 72 L.Ed. 167, 56 A.L.R. 645], said:

"``When a man goes upon a railroad track he knows that he goes to a place where he will be killed if a train comes upon him before he is clear of the track. He knows that he must stop for the train, not the train stop for him.'"

If it be conceded that such cases as those first above cited on this subject have somewhat modified the last chance rule, by extending the theory that a plaintiff might be held unable to escape because he was oblivious to his danger at the last minute although he had theretofore seen the other vehicle approaching, no such modification has ever been applied in any other case of a railroad operating on a private right of way outside of a city and, in our opinion, the same should not be so extended as to do away with the established and salutary rules laid down in the last line of cases referred to and in many other cases to the same effect. In such a case as this a motorman has a right to assume that the driver of the automobile will stop. His street car is heavier and cannot turn aside and he may reasonably, and naturally will, delay stopping in the belief that the other will stop or will get across the track. There is naturally a much shorter time during which it is possible for him to see and realize that the other is not going to stop and cannot get across, since the other may come very close before stopping and if he does not stop may speed up to get across. The very fact that a motorist slows down almost to a stop when about 20 feet away, as the respondent did here, is apt to lead the motorman to believe that the motorist is going to stop, and would naturally tend to delay his application of the brakes. On the other hand, the driver of the automobile not only has the duty to stop but in his lighter and quicker vehicle has much more of an opportunity to stop or to speed up. Even after the respondent failed to stop the slightest exercise of care on his part would have enabled him to avoid the accident by a very slight increase in speed which would have been easily possible at the rate he was going. [5] In determining whether the doctrine of last clear chance is applicable the test is whether, when both parties have been negligent, the plaintiff has ceased to have the power to prevent the accident and the defendant may still do so by exercising ordinary care. (Darling v. Pacific Electric Ry. Co., supra.)

Applying this test here we conclude that the court erred in submitting the issue of last clear chance to the jury. Zoerb testified that he was making change for a passenger and that he did not see the automobile until he was 75 feet from the crossing. Later he said he did not measure it and it might have been "say 100 or 75". A passenger on the car testified that while the motorman was so making change she saw that the automobile was not going to stop but that it was then too late for her to call out a warning. It is apparent from the evidence that the street car must have been about 75 feet from the crossing at the time the respondent was about 22 feet away, since it would have taken each about three seconds to reach the point of impact at the rate they were traveling. There is no direct evidence that Zoerb saw the automobile until he was about 75 feet from the crossing. The evidence would not support an implied finding that he actually saw it earlier. In view of the evidence that the motorman was making change and did not see the respondent until he was some 75 feet from the crossing, that it would take 75 or 80 feet to stop the street car when the brakes were applied, that it would take an appreciable time after the motorman determined to apply the brakes before they would take effect, and that the respondent slowed down to five miles an hour or less when he was about 20 feet from the tracks on which the car was coming, the jury was not entitled to draw the inference either that Zoerb actually saw the danger when he was farther away, or that he should have realized when he was 75 feet away that the respondent was then in a position of danger from which he could not escape or that he could and should have then stopped in time to have avoided the accident. Further, if it could be held under the evidence that the motorman had any chance to stop after he realized the danger it must inevitably be held that the respondent not only also had a chance but that he actually had a better chance to avoid the collision. When he was some 20 feet from the point of impact he observed the oncoming car which, according to his own evidence, may have been not more than 200 feet away. Without knowing how fast the car was coming he slowed down to five miles an hour or less and, changing to second gear, proceeded across the tracks without stopping or increasing his speed. Under such circumstances the theory that he was oblivious to his danger because he did not again look toward the street car cannot be invoked to show his inability to escape, and his negligence was not only continuous to the last but was the proximate cause of his injury. There was neither evidence justifying an inference that the respondent was unable to escape from his position of peril nor that the motorman had a clear opportunity to avoid the accident. [6] The doctrine of last clear chance was never intended to protect a plaintiff from what amounts to suicidal recklessness and it should not be thus extended. Regardless of any other consideration it fully appears that the respondent, right up to the moment of the impact, had not only a chance but the better chance to avoid the accident.

The views above expressed make it unnecessary to consider the other points raised.

The judgment is reversed.

Jennings, J., concurred.