Nesje v. Metropolitan Coach Lines

California Court of Appeal Apr 16, 1956 No. Civ. 21016Published

Before: Shinn

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Holding. The court held that the doctrine of last clear chance was inapplicable because the train operator had no duty to anticipate the decedent's sudden movement into the train's path, and that the evidence failed to establish any basis for defendant's liability. Although the trial court erred in admitting hearsay evidence regarding the decedent's blood alcohol content, the error was harmless because the plaintiffs failed to establish a case for liability.

Issues

Whether the trial court erred in refusing to instruct the jury on the doctrine of last clear chance.
Whether the trial court erred in admitting hearsay testimony regarding the results of a blood alcohol analysis without proper foundation for the identity of the blood sample.

Disposition. affirmed

Quotations verified verbatim against the opinion

“A mere possible opportunity to avoid an accident is not a last clear chance to avoid it.”

“The instant it appeared he was not going to stop Schull did all that could be done to avoid an accident, but it was too late.”

“The error of admitting the testimony of Thompson would require a reversal if a judgment in favor of plaintiffs could be sustained.”

SHINN, P. J.

Plaintiffs in this action are the surviving spouse, adult sister and two adult brothers of Crist Nesje, deceased, who sue for damages resulting from the wrongful death of decedent which occurred while he was crossing a street in Long Beach and came into contact with a single car electric interurban train of Metropolitan Coach Lines operated by its motorman, Louis C. Schull, who also was named as a defendant. Verdict and judgment were in favor of the defendants and plaintiffs appeal.

Ocean Boulevard extends easterly and westerly and Chestnut Street northerly and southerly in the city of Long Beach. Metropolitan, to be referred to as defendant, maintains double railway tracks on Ocean Avenue. Decedent was crossing in a crosswalk from the southeasterly to the northeasterly corner of the intersection of the two streets; defendant’s train was approaching from the east on the northerly track. Schull observed decedent as he entered the street. The train was then about 100 feet from the intersection. He also noticed that as decedent approached the tracks he was not looking toward the train. Schull sounded his bell vigorously and proceeded at 15 miles per hour until he was about 20 feet from the intersection when decedent was at the south rail of the southerly track. At that time decedent ran in front of the train; Schull immediately applied the emergency brakes but decedent failed to get past the train and was struck by the right front step, receiving injuries from which he died. The train came to rest in the west crosswalk, having traveled about 80 feet from the point where brakes were applied.

The first point to be considered is that the court refused plaintiffs’ requested instruction on the doctrine of last clear chance. We think there was no error in this ruling.

The uncontradicted evidence was that at a speed of 15 miles per hour the train could be stopped with use of the emergency brakes in from 75 to 100 feet. We think the only reasonable conclusion from the facts in evidence was that Schull gave ample warning by ringing the bell and that he applied the brakes as soon as he realized, or should have

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realized, that decedent was in a position of danger from which, due to his inattention, he probably would not escape through his own efforts.

Nesje v. Metropolitan Coach Lines

AI Brief

SHINN, P. J.

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