Johnston v. Brewer

THE COURT.

Plaintiff commenced this action to recover damages for personal injuries received when he was struck by an automobile driven by defendant. The action was tried before a jury which returned a verdict in favor of defendant. Prom the judgment entered upon such verdict and an order denying a motion for new trial plaintiff has taken this appeal.

The accident in which plaintiff received his injuries occurred in the city of Los Angeles at approximately 2 A. M. on November 20, 1937. On the morning of the accident, plaintiff left his residence at approximately 1:30 A. M. and proceeded to a restaurant where he purchased a glass of beer. Upon leaving this restaurant he walked to a cafe at the intersection of Venice Boulevard and Main Street where he partook of some food. Leaving this cafe, plaintiff crossed to the northeast corner of the intersection of Venice Boulevard and Main Street at which point he stopped, looked in both directions on Main Street, and proceeded to cross Main Street in a westerly direction. Plaintiff testified that he had observed an automobile traveling north on Main Street at a point about one block south of Venice Boulevard but that after starting to cross Main Street in the crosswalk he remembers nothing more. Actually there were two automobiles traveling north on Main Street immediately prior to the accident. As the automobiles approached the intersection of Venice Boulevard and Main Street defendant guided his car close to the easterly curb of Main Street in order to avoid a pedestrian safety zone which was just south of Venice Boulevard and the other automobile continued on its course straddling the street ear tracks east of the center line of Main Street. The automobiles maintained their relative positions as they proceeded through the intersection until they reached a point approximately 50 feet north of the north curb line of Venice Boulevard, where the automobile which was following the street car tracks swerved to the left to avoid striking plaintiff. Defendant testified that he saw plaintiff step backward away from the other automobile but was unable to avoid striking plaintiff. As a result of the accident plaintiff suffered a laceration on the back of his

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head, a compound comminuted fracture of the left leg and a comminuted fracture of the left arm.

It is first contended by plaintiff that the court committed prejudicial error in instructing the jury relative to the doctrine of last clear chance. Plaintiff does not criticize the principles enunciated by the court in the instruction but contends that the doctrine of last clear chance was not applicable under the facts. We deem it unnecessary to decide whether the evidence was sufficient to justify the court in giving the questioned instruction, for no possible prejudice could have resulted to plaintiff in any event. Plaintiff relies upon the rule that where evidence of one or more of the elements essential to the application of the doctrine is lacking, the giving of such an instruction is reversible error.