Trauscht v. Lamb

LA PRADE, Justice

(dissenting).

I cannot agree with the disposition of this case by the majority decision for the reason that I cannot discover from the evidence any facts which would authorize the giving of an instruction on the doc- ' trine of last clear chance. Such was the opinion of the learned, trial judge who tried the case, and who heard and saw all the witnesses, and had the feel of the case. The claim of applicability of the doctrine of last clear chance to the facts was presented to him and thoroughly argued at the time the request for -the instruction was made and refused. The matter was again presented, briefed, and thoroughly argued at the time the motion for a new trial was made and denied. I thoroughly agree with the opinion of the trial judge.

The facts in bold relief are that the plaintiff was driving west in the north half of the highway (33 to 36 ft. wide). The photographs disclose that the customary white line clearly indicated the center of the highway. Defendant was driving east on the same highway, being on the south half thereof. The accident occurred at 2 p. m. in broad daylight. There were no cars or other obstructions between the two cars as they approached each other. From plaintiff’s actions it appears that he intended at some time to turn south into a private driveway leading into an orchard. The existence of this driveway was unknown to defendant, and there were no signs or other markings to indicate the existence of the private driveway. Prior to the point of collision plaintiff had indicated by his extended hand that he intended to turn south. His hand had been extended while he travelled approximately 150 ft. but without making a turn. When and where he intended to turn was known only to him. Plaintiff saw, or should have seen, the defendant as he approached. Defendant testified that he saw plaintiff at all times. Defendant was entitled to believe that plaintiff saw him and that plaintiff would not abruptly turn in front of him.

The giving of the hand signal cannot be interpreted to mean that the plaintiff was thereby giving notice of the fact that he was about to place himself in a position of peril. Defendant is not to be charged for a want of clairvoyance. Defendant’s conduct is open to examination only after plaintiff came into a position of peril, discovered or discoverable, Casey v. Marshall, 64 Ariz. 232, 238, 168 P.2d 240; Cashell v. Southern Ry. Co., 152 Va. 335, 147 S.E. 209, 211; Rix v. Stone, 115 Conn. 658, 163 A. 258, 260; Lieberman v. McLaughlin, 233 Ky. 763, 26 S.W.2d 753, 756. The case of Johnson v. Sacramento Northern Ry., 54 Cal.App.2d 528, 129 P.2d 503, 505, 506, recognizes the importance of the sequence of events which gives the party to be charged time for effective action to avoid the accident after the discovery of the injured party’s peril. It is. there said:

“The doctrine is most frequently applied in situations where a driver or pedestrian has placed himself, through his own negligence, in, or in very close proximity to, the path of an oncoming train or vehicle and is-thereafter discovered in such position of danger by the operator of the oncoming train or vehicle in ample time-for the latter to avoid the accident by the exercise of ordinary care. In such cases there is a distinct sequence of events which gives the party sought to be charged time for effective action * * * to avoid the accident after the discovery of the injured party’s peril.

* * * * * *

“It is also significant to note that the ‘situation of danger’ or ‘position of danger,’ referred to in the authorities dealing with the last clear chance doctrine, is reached only when a plaintiff, moving toward the path of an oncoming train or vehicle, has reached a position ‘from which he cannot escape by the exercise of ordinary care.’ In other words, it is not enough, under the last clear chance doctrine, that plaintiff is merely approaching a position of danger, for until he has reached a position of danger, he has the same opportunity to avoid the accident by the exercise of ordinary care, as has the defendant. In such cases the ordinary rules of negligence and contributory negligence apply, rather than the exceptional doctrine of last clear chance. It is only in cases in which, after plaintiff reaches a position of danger, defendant has a last clear chance to avoid the accident by the exercise of ordinary care, and plaintiff has no similar chance, that the doctrine is applicable.” (Emphasis supplied.)

The south half of the highway was less than 18 ft. wide. The photographs show a very distinct skid mark made by the right rear wheel of defendant’s car. • From appearances this skid mark appears to be approximately 40 ft. in length and is in the middle of the south half of the highway. Defendant’s Chevrolet is approximately 5 ft. wide over all. This indicates that the left side of this car was approximately 4 ft. from the middle of the highway. The photographs show that the Ford pick-up was hit right under the door handle, and for all intents and purposes in the middle of the car. From the photographs it also appears that defendant’s Chevrolet struck the Ford head-on. From all the evidence and- circumstances I would say that the Ford truck had proceeded far enough into the south half of the highway, so that its rear end had passed over the middle of the highway at the time of impact.

The doctrine of last clear chance can only be relied upon when a plaintiff has negligently subjected himself to a risk of harm from a defendant’s subsequent negligence, and may recover for harm caused thereby, if, immediately preceding the harm,

“(a) the plaintiff is unable to avoid it by the exercise of reasonable vigi-. lance and care, and

“(b) the defendant

“(i) knows of the plaintiff’s situation and realizes the helpless peril involved therein; or

“(ii) knows of the plaintiff’s situation and has reason to realize the peril involved therein; or

“(iii) would have discovered the plaintiff’s situation and thus had reason to realize the plaintiff’s helpless peril had he exercised the vigilance which it was his duty to the plaintiff to exercise, and

“(c) thereafter is negligent in failing to utilize with reasonable care and competence his then existing ability to avoid harming the plaintiff.” Sec. 479, Restatement of the Law of Torts.

Plaintiff, up to the point of crossing the middle line, was merely approaching a position of danger, and defendant need not assume in advance that plaintiff would pass from a position of safety without taking proper precautions.

“In other words, it is not enough, under the last clear chance doctrine, that plaintiff is merely approaching a position of danger, for until he has reached a position of danger, he has same opportunity to avoid the accident by the exercise of ordinary care,, as has the defendant.” Johnson v. Sacramento Northern Ry., supra.

Plaintiff pássed from a position of safety and into a position of danger in a fraction of a second. The last clear chance canfiot come into operation until after the vehicle has reached such a position of danger and ordinarily, in the case of rapidly moving vehicles, the remaining time is too short to afford a last clear chance to avoid the accident. The question is: Where was defendant when plaintiff turned across the highway? The evidence is that he was 50 tp 100 ft. away, travelling at a speed variously estimated at 40 to 65 miles .per hour.

It is a well-established fact that there is a “reaction time”, or the time in which an automobile driver can act when danger is presented, depending upon the individual. In some young and especially alert individuals the reaction time may be as little as one-half a second, but the average reaction time is three-fourths of a second. Accident Facts, publication of National Safety Council, Chicago; Deft Driving (1952) by Milton D. Kramer, published by Ford Motor Co., Dearborn, Mich.; Arizona Traffic Accidents, May 1954.

“Reaction distance” is the distance an automobile will travel before the driver does anything in the face of some distress signal or dánger situation.

The average “stopping distance” on cars having brakes in first-class condition .on any level concrete surfaces depends upon the speed of the automobile at the time .the brakes are applied. A car driven at 50 miles per hour will travel 55 ft. during .the reaction time (% second), and an additional 138 ft. after the brakes are'applied before it can be safely brought to a stop. The stopping distance for a car being driven at 6Ó miles per hour is 264 ft., in which the reaction distance is 66 ft. and the braking distance is 198 ft. (See publications, supra.)

Plaintiff’s witness estimated that defendant was driving at a speed somewhere between 40 and 65 miles per hour. Assuming defendant was driving 6.0 miles per hour his car travelled 66 ft. (reaction distance) before he applied his brakes. Further assuming that defendant was 100 ft. away (maximum estimate) from plaintiff’s' car when he first saw plaintiff’s car in a position of distress, means that defendant only had to travel 36 "ft. before colliding with the plaintiff’s car. As stated above the skid marks indicate that he travelled approximately 40 ft. after brakes were applied and before contact was made. Under the assumption made defendant was still travelling at the rate of 60 miles per hour when he first applied his brakes. At this moment he was 36 to 40 ft. from plaintiff’s car sitting crosswise in the south half of the highway. In view of this situation it does not appear to me that any jury would have been authorized to find the defendant was negligent in failing to utilize with reasonable, care and competence his then existing ability to avoid harming the plaintiff. As I view the evidence it patently discloses that.the defendant had no existing ability to avoid harming the plaintiff. And as was said in Bagwill v. Pacific Electric Ry. Co., 90 Cal.App. 114, at page 121, 265 P. 517, at page 519:

“ * * * Certainly the doctrine of last clear chance never meant a splitting of seconds when emergencies arise. * * * 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.” (Emphasis supplied.)

Practically all of the cases recognize that it takes an exceptional set of facts involving collisions between moving vehicles to authorize the giving of an instruction on the doctrine of last clear chance. I am of the opinion that the doctrine is wholly inapplicable and should not be applied to the ordinary case, in which the act creating the peril occurs practically simultaneously with the happening of the accident, and in which neither party cam fairly be said ' to have had a last clear chance thereafter to avoid the consequences. To apply the- doctrine to such cases would be equivalent to denying the existence of the general rule which makes contributory negligence a bar to recovery.

To have instructed the jury as requested would have conveyed the idea that there was evidence from which it could be inferred that defendant had an opportunity to avoid harming the plaintiff. A verdict for plaintiff following such an instruction would have pinned on defendant the negligence that was the proximate cause of the accident and injury, in my mind a conclusion that could not have been sustained.

The judgment should be affirmed.