PETERS, P. J. I dissent.
In my opinion the trial court should have instructed the jury on the doctrine of last clear chance.
There is evidence from which the jury could have found that plaintiff was negligent, but that evidence does not compel the conclusion that such negligence was a proximate cause of [556]the accident. On the date of the accident there was no marked crosswalk across Army Street. Plaintiff crossed this 80-foot street at a point where pedestrians, acting reasonably, would normally cross. While the evidence is not clear on the point, it is susceptible of the interpretation that, when plaintiff started to cross, the traffic light was red for Army Street traffic approaching from the west. When plaintiff had passed the center of the street he observed the approaching vehicle about 150 feet away. He proceeded rapidly across the street and was within 5 feet of the gutter when he was hit by the right front fender of defendant’s ear. In other words, plaintiff had crossed in front of the left fender of defendant’s car, passed in front of the radiator, and was within a foot of safety when he was hit. The slightest swerve to the left by defendant would have avoided the accident.
As to defendant’s negligence there can be no doubt. Army Street at the scene of the accident is straight, level, and well lighted. Defendant testified that the night was dry and clear, that his lights were on high beam and that he was traveling at between 20 to 25 miles per hour. He admitted that when he was about 300 feet from the scene of the accident he saw a woman pedestrian about 75 to 80 feet in front of his car, and swerved to avoid hitting her. There was no physical obstruction between defendant’s ear and plaintiff. Defendant’s explanation as to why he did not see the plaintiff, although he was looking straight ahead, was that, at some undisclosed place within the last 300 feet, he was blinded by the glare from the lights of vehicles approaching from the right on Bayshore Boulevard. Even though blinded by this glare, the defendant, if his story is to be believed, proceeded ahead at 20 to 25 miles an hour, in complete disregard of what might be on the street ahead. He testified, in an obvious attempt to preclude the application of the doctrine of last clear chance, that he did not see the plaintiff until plaintiff had crossed in front of the automobile and was 5 feet in front of the right fender.
If there were a doctrine of comparative negligence in this state, which there is not, there could be no reasonable doubt but that the negligence of defendant was greater than that of plaintiff. The rule is that, if the plaintiff is guilty of contributory negligence of any degree that proximately causes the accident, he is barred from recovery no matter how great the negligence of the defendant may have been. But, for that rule to apply, the contributory negligence of the plaintiff must [557]have been a proximate cause of the accident. Accordingly, even though the plaintiff may have been negligent, if the defendant had the last clear chance to avoid the accident he is liable under the theory that, in such event, the negligence of the defendant is the sole proximate cause. These principles are elementary, but must be kept in mind in ascertaining whether the jury should have been instructed on the doctrine in this case.
In this state, in order that the doctrine may be applicable, the defendant must have actually seen the plaintiff in time to avoid the accident under circumstances that defendant knew or should have known of the danger to plaintiff. It is not sufficient that the defendant should have seen the plaintiff—the evidence must be reasonably susceptible of the interpretation that defendant actually saw the plaintiff. But, in this connection, the jury is not bound to believe the testimony of defendant that he did not see the plaintiff, nor is the jury bound to believe defendant’s explanation of why he did not see. The majority opinion does not challenge these fundamental principles. In fact, it quotes the proper rule as stated in Gillette v. City of San Francisco, 58 Cal.App.2d 434 [136 P.2d 611], but then, in my opinion, fails to apply the rule. The rule as there stated is that: “. . . notwithstanding there may be a total absence of any positive testimony that the defendant actually knew of plaintiff’s danger, and even though the defendant definitely denies seeing the plaintiff at all, the doctrine of the last clear chance may be invoked and applied where the facts and circumstances are such as would justify the jury in finding that despite the defendant’s denial of knowledge or the absence of direct testimony on the subject, he was actually aware of plaintiff’s danger in time to avert the accident; in other words, that he ‘must have known’ of plaintiff’s danger.” (58 Cal.App.2d 434, 442.) The other cases cited in the majority opinion, and many others could be cited, abundantly support that rule.
Now how does the majority opinion purport to apply that rule? It says that there is no fact or circumstance contained in the evidence from which the jury could have inferred that defendant actually saw plaintiff in time to avoid the accident. In this connection that opinion states that defendant’s testimony on this point is “uncontradicted,” and apparently for that reason must be believed. Now let us see what the record discloses. The defendant testified that he was looking straight ahead, on a straight, level, well-lighted street, on a clear, dry [558]night, and that shortly before the accident he could see a pedestrian 75 to 80 feet in front of him. But I did not see the plaintiff because, says defendant, I was blinded by the glare of lights from vehicles approaching from the right on Bayshore Boulevard. Even if that testimony were completely uncontradicted by any evidence, the jury was not bound to believe it. The jury is the sole judge of the credibility of a witness and may disbelieve even uncontradicted evidence. But, in this case, that evidence is not uncontradicted. Various diagrams and photographs of the scene of the accident were introduced into evidence. They disclose that Bayshore Boulevard, itself a very wide street, comes into Army Street at an angle. It was from the lights of automobiles traveling on Bayshore Boulevard that defendant claims he was blinded. To say the least, it is doubtful, since light travels in approximately a straight line, that headlights from cars on Bayshore Boulevard could have, under fundamental laws of physics, blinded the defendant. To say the least, it was for the jury to determine whether defendant’s testimony that he was blinded by such lights was true or false. A finding that he was not so blinded could find ample support in the diagrams and photographs. The question was at least debatable. This being so, the evidence is susceptible of the reasonable interpretation, and the jury could have found, that defendant was not blinded, but proceeded to run the plaintiff down under circumstances where if, as he testified, he was looking straight ahead, he must have seen the plaintiff.
There can be no doubt that if a defendant testified that he was looking straight ahead and did not see what was plainly obvious, his failure to see is negligence—in fact, his. failure to see under such circumstances is negligence as a matter of law. (Huetter v. Andrews, 91 Cal.App.2d 142 [204 P.2d 655]—hearing denied by Supreme Court.)
In this case, if the jury disbelieved the testimony that defendant was blinded, it would have to find that defendant was negligent. That, of course, is not sufficient to make the doctrine of last clear chance applicable. As already pointed out, for that doctrine to be applicable, the jury must find not only that defendant was negligent in not seeing, but that he actually did see the plaintiff in time to avoid the accident. In this connection the majority opinion falls into fundamental error. It holds, in cases where the defendant denies seeing the plaintiff, that before the jury can find he actually did see him, there must be some fact or circumstance that demon[559]strates he actually did see. Thus, it is stated that, in cases where the doctrine has been held applicable, there was evidence that prior to the accident the defendant swerved, blew his horn, put on his brakes, or some such evidence. Unless some such fact or circumstance is shown, according to the majority opinion, the defendant’s testimony that he did not see must be believed, and the doctrine of last clear chance is not applicable. That is not the law. There is no such artificial and illogical limitation on the doctrine. If the plaintiff is in a position of danger that would be plainly obvious to a careful driver, and there is testimony that defendant was looking straight ahead, the law is and should be that the jury may infer that defendant’s testimony that he did not see is false and that in fact he did see. The true rule, supported by many authorities, is thus stated in 2 California Jurisprudence Ten Year Supplement, section 128, at page 189: “Again, where it appears that the victim was in the path of the vehicle and plainly visible to the driver, the trier of facts may properly conclude that the driver ‘must have seen’ him. Hence, the jury may be instructed as to the Doctrine of Last Clear Chance although there is no direct evidence that the defendant actually knew of the victim’s presence in the roadway, and, indeed, although he may have testified that he did not see the victim in time to avert the collision.” This is sound law and supported by many eases. In addition to the cases cited in support of the above quotation, and which do support it, there are several other cases where the only evidence was that the view of defendant was unobstructed, that he was looking straight ahead, but that he did not see the plaintiff in time to avoid the accident. Nevertheless, it was held that it was for the jury to determine whether defendant in fact did see the plaintiff in time to avoid the accident. These cases all hold that from evidence that the defendant should have seen, the jury may infer that he, in fact, did see. (See Argo v. Southern Pacific Co., 39 Cal.App.2d 706 [104 P.2d 77] ; Pire v. Gladding McBean & Co., 55 Cal.App.2d 108 [130 P.2d 143], and cases cited in those opinions.) Another excellent case on the subject is Handley v. Lombardi, 122 Cal.App. 22 [9 P.2d 867]. There the defendant testified that he did not see plaintiff’s truck until just before the collision. There was no evidence that defendant swerved, blew his horn, put on his brakes, or did any other act that would indicate that he saw plaintiff in time to avert the accident. Neverthe
“The court instructed the jury on the last clear chance doctrine and appellant claims error on that ground. The case is on all-fours with Smith v. Los Angeles Ry. Exp. Co., 105 Cal.App. 657 [288 P. 690, 691], wherein it was held that the jury was properly instructed on the doctrine of last clear chance. In the Smith case a horse-drawn vehicle traveling at the rate of three miles per hour was struck by an electric car traveling at the rate of twenty-five miles per hour. Substitute slow-moving truck for slow-moving horse and wagon, and rapidly moving automobile for rapidly moving street-car and the cases are not distinguishable on their facts, with the exception that appellant had the additional opportunity to avoid a collision afforded by his ability to turn his automobile so as to pass to the rear of the truck which is denied to a street-car confined as it must be to its own tracks.
" Specifically, appellant claims that since appellant testified that he did not see the truck until he was almost upon it, there was no evidence from which the jury could find that he had actual knowledge of the danger of collision before it was too late to avoid it. A similar claim was disposed of in the Smith case in the following language: ‘The motorman testified that he did not see plaintiff on the tracks until the car was within some 30 feet of the wagon, and that the horses were then upon the track. It is contended that there is no other evidence in the record which would justify a contrary finding. The track, for some blocks leading to Third Street, was straight; one could see for several blocks; the motorman himself admitted he could see for some 150 feet ahead. He was sitting on his chair at the front of the car, with his hand on the control, for several hundred feet while approaching the scene of the injury. The wagon was moving at the very slow speed of three miles per hour. The car was moving about eight times as fast, or some 25 miles per hour. The wagon had proceeded some 12 feet into the path of danger before being struck. Under all the circumstances . . . the jury might have found that the motorman saw plaintiff in time to have avoided the injury, and while plaintiff was actually in peril. ’ The same inference could have been drawn in the case in hand. It is obvious, with the truck moving ten or twelve miles per hour, that there would, be an appreciable time when the truck would be in a position of danger from which nothing that the driver of the truck could do [561]could possibly extricate it. From the time that the front end of the truck was too close to the path of the oncoming automobile to stop before entering that path, until it was actually struck in the rear wheel, the driver of the truck was helpless to avoid the collision. During the same period appellant, by either applying his brakes or swerving behind the truck, could have avoided striking it. The truck was there in plain sight; appellant was sitting at the wheel of the oncoming automobile; there were no obstructions to his view. The jury was not bound to accept his testimony that he did not see the truck until just before he struck it.”
The rule of these cases is fundamentally sound, and conclusive of the instant case. Once it is admitted that the jury could have found that defendant’s uncorroborated and, in my opinion, inherently improbable testimony that he was “blinded” was false, then we have a case where the evidence shows that defendant ran the plaintiff down on a level, straight, well-lighted street, on a clear, dry night, where he could see pedestrians and did see one at least 75 to 80 feet ahead of his car, and where he was looking straight ahead. Under such circumstances the jury could, under the rule of the cases cited, find that defendant did see plaintiff and could reasonably infer that he proceeded straight ahead in the erroneous belief that plaintiff would clear the fender. The evidence is reasonably susceptible of the interpretation that defendant saw plaintiff, but simply guessed wrong by misjudging the distance. According to the illogical rule contained in the majority opinion, if defendant had swerved, blown his horn or put on his brakes, then the last clear chance doctrine would have been applicable, but where the defendant makes no effort to avoid the accident after seeing the plaintiff, the doctrine is not applicable. That is not and should not be the law.
This case falls precisely within the rule of cases cited. This being so, it was for the jury to determine whether defendant did or did not have the last clear chance to avoid the accident, and the jury should have been so instructed. Failure to do so was most serious error requiring a reversal.
A petition for a rehearing was denied July 23, 1949. Peters, P. J., voted for a rehearing. Appellant’s petition for a hearing by the Supreme Court was denied August 18, 1949. Carter, J., voted for a hearing.