Jones v. Yuma Motor Freight Terminal Co.

WOOD, J.

This action was commenced by Ovie Ruff Jones and Naomi Brantley, husband and mother respectively of Ila Mae Jones, deceased, to recover damages for the wrong

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ful death of Ila Mae Jones and for personal injuries suffered by plaintiff Ovie Ruff Jones, alleged to have been caused by the negligent operation by the defendants of a motor truck and trailer. A jury returned a verdict in favor of Ovie Ruff Jones in the sum of $4,981.85 for his personal injuries and in favor of both plaintiffs in the sum of $3,200 for the wrongful death of Ila Mae Jones. For the sake of clarity and brevity the driver of the Ford car involved in the accident, Ovie Ruff Jones, will be referred to as plaintiff and the driver of the truck will be referred to as defendant.

The accident occurred at about 8 o’clock in the morning of January 9, 1940, on highway 99 in Riverside County. Plaintiff and his wife were driving in a southerly direction on the highway in an old Model T Ford and defendant was driving the truck and trailer in a northerly direction on the highway. Plaintiff decided to drive to the left across the highway to buy gasoline at a service station and as he made the turn his car was struck by the oncoming truck. The testimony of the various witnesses concerning the circumstances of the collision is highly conflicting. The two drivers gave very different versions of what took place at the time of the accident and each made statements before the trial which were contradictory of the statements he made on the witness stand. Defendant concedes that there is substantial evidence of defendant’s negligence and also substantial evidence of the absence of negligence on the part of plaintiff and that if no instruction had been given to the jury upon the doctrine of the last clear chance the verdict could be sustained. But he insists that the record contains no evidence to justify the giving of this instruction and therefore asks to have the judgment reversed. He does not contend that the doctrine was erroneously stated by the court to the jury. The only question for our decision is whether the court was justified in instructing the jury on the doctrine of last clear chance.

Both parties concede that under the decisions of the reviewing courts of California it is reversible error to give instructions to the jury on the last clear chance doctrine in the absence of substantial evidence from which it might be found that all of the necessary elements of the doctrine are present.