CARTER, J. I dissent.
The majority opinion in this case is contrary to the authorities, usurps the function of the jury and makes serious inroads into the last clear chance doctrine.
[298]It is held that the doctrine is inapplicable because defendant did not, as a matter of law, have a chance to avoid the accident by acting as a person of ordinance prudence. In addition to his ability to stop, which is demonstrated by the evidence, he could have swerved to the left and averted the collision. The evidence shows that both ears were traveling at about 40 miles per hour; that defendant saw the deceased 500 feet from the intersection; that when the latter was 30 feet from it defendant was 75 feet and decedent was looking straight ahead and did not slow down at all, obviously indicating to defendant that he would not stop at the stop sign. Yet defendant applied his brakes only lightly, not forcefully enough to stop his car and avoid a collision. The accident occurred in the northeast part of the intersection and decedent’s car was struck at the left rear wheel and door. The highway was 20 feet wide. No other cars were on the highway. Defendant made no effort to swerve to the left to avert the collision which he plainly could have done. Thus, he had ample opportunity to avoid the collision either by stopping or swerving. It was for the jury to say whether as a man of ordinary prudence he should have followed one course or the other.
The majority opinion weighs the evidence and concludes that there was no last clear chance by such statements as, that defendant was entitled to assume decedent would stop at the stop sign (the circumstances justified the jury in concluding that he was remiss if he made such assumption) and that defendant was entitled to the imminent peril rule with respect to swerving (whether there was such peril and he acted as a man of ordinary prudence was an issue for the jury).
It is not the rule, as asserted by the majority, that the last clear chance rule does not apply where two moving vehicles are involved; the conclusion reached is contrary to the authorities in this state.
We said in Selinsky v. Olsen, 38 Cal.2d 102, 105, 106 [237 P.2d 645]: “It was for the jury to determine whether in the space of time involved he could have avoided the collision.”
In Bonebrake v. McCormick, 35 Cal.2d 16 [215 P.2d 728], this court reversed the trial court for refusal to instruct on the doctrine where two moving vehicles were involved, decedent on a bicycle and defendant in a car following him and the decedent turned to the left in the path of the car.
In Peterson v. Burkhalter, 38 Cal.2d 107 [237 P.2d 977], the vehicles were both moving toward an intersection and [299]would arrive there at the same time. The plaintiff was not looking at defendant and a collision occurred. This court said (p. 113) : “. . . [T]here is ample evidence from which the jury could determine that a reasonably prudent man, knowing the facts of which Burkhalter was aware, should have foreseen that Peterson might not turn or stop his motor scooter. Under such circumstances, it was negligent for Burk-halter to proceed toward the intersection acting upon a contrary assumption. . . . Considering the evidence in the Poneino case [relied upon by the majority], it does not stand for the proposition that, as a matter of law, a defendant with two seconds within which to avoid an accident had no chance to do so. In a proper ease, an appellate court might say that the defendant did not have a chance which amounted to a ‘clear’ one. But the rule should not be applied when the only evidence is to the effect-that the defendant could have avoided the accident within the existing time and distance limitations.
“Burkhalter saw Peterson when 50 feet from the intersection. He estimated that he could stop his automobile within 10 or 15 feet. He did stop within 28 to 30 feet after the impact, and testified that he could have done so sooner. All of the evidence indicates that Burkhalter might have halted his automobile at a much less distance than 50 feet.
“Moreover, Burkhalter’s testimony reveals that he made no attempt to avoid the accident by turning his automobile or sounding his horn. It cannot be said, as a matter of law, that he did not have sufficient time in which to do something, and the jury properly might have found that sounding his horn to attract the attention of Peterson would have constituted the exercise of reasonable care on his part to avert the accident.” (Italics added.) That case is indistinguishable from the one at bar.
In Center v. Yellow Cab Co., 216 Cal. 205 [13 P.2d 918], plaintiff, a pedestrian, was moving across the street not at a crosswalk and defendant was driving on the street when his ear struck plaintiff. Plaintiff was not observing defendant’s approach. It was held defendant had a last clear chance to avoid the accident by swerving, blowing his horn or stopping.
In Girdner v. Union Oil Co., 216 Cal. 197 [13 P.2d 915], plaintiff drove across a main highway on a secondary crossroad looking away from defendant’s car approaching the intersection on the main highway. Defendant drove his car into plaintiff’s. This court pointed out that the trial court [300]found that the evidence (p. 200) “established the fact that when plaintiff approached and was proceeding across the path of the oil truck, and up to the time of the collision, he did not see and was totally oblivious of the approach of the truck, and the danger that confronted him; that defendant Elam first saw plaintiff’s ear some forty or fifty feet away from the intersection; that he saw plaintiff looking straight ahead, in an opposite direction, and not slowing the speed of his automobile ; that Elam was traveling at a speed of twenty miles an hour and could have stopped his truck almost immediately, and within a distance of a few feet; that he had ample time and sufficient distance, at least twenty-five to thirty-five feet, in which to stop and avoid coming in contact with plaintiff’s car, but failed to do so, ’ ’ and concluded that defendant could have avoided the collision by stopping, swerving or blowing his horn.
Chappell v. San Diego etc. Ry. Co., 201 Cal. 560 [258 P. 73], involved a collision between two moving vehicles at an intersection of a street railway and street. The one on the tracks was a gas motor railway car and the one on the street an automobile. It appeared that defendant (operator of the railway car) could have stopped when he first saw the car approaching when 55 feet to 60 feet from the crossing. It appeared that plaintiff was approaching slowly and attempting to stop. The court said (p. 565): “The verdict must be taken as a finding that the defendant’s car failed to stop as soon as it was possible for it to have done so in the exercise of due care and that the last act of negligence of the defendant was the proximate cause of the injury. This it was the province of the fury to find under the instructions of the court relating to the doctrine of the last clear chance.” (Italics added.)
Podeszwa v. White, 99 Cal.App.2d 777 [222 P.2d 683], while not involving the doctrine, is directly in point. Defendant approached an intersection at 40 miles per hour on a through highway and saw decedent’s car approaching a stop sign at the intersection at 10 miles per hour and did not stop but continued across the highway. The court said (p. 779) : “Manifestly by a very slight swerve of his truck he could have passed behind the coupé and avoided the accident. Furthermore, when he observed the coupé passing the boulevard stop sign and approaching the Orangethorpe pavement the application of his brakes would have slowed his truck sufficiently to allow the coupé to pass in front of him. The fact that the driver of the coupé did not make the boulevard stop as re[301]quired by law (Veh. Code, §§552, 577) did not justify defendant in failing to reduce his speed or change the direction of his ear in an effort to avoid the accident.”
The basic principle is that it is for the trier of the fact to determine whether defendant had a last clear chance to avoid the collision and that is true where the evidence is inconclusive or contradictory, or as stated: “It is not improper to instruct the jury on the doctrine of ‘last clear chance’ when, on any valid, theory, there is substantial evidence to support the application of that principle. (Gardini v. Arakelian, 18 Cal.App.2d 424, 430 [64 P.2d 181].) In the case entitled Wheeler v. Buerkle, 14 Cal.App.2d 368, 373 [58 P.2d 230], it was said that ‘if the facts of a case do not bring the doctrine into play the court must so decide,’ and if the facts be such that the doctrine may he applied, it is the duty of a trial judge to submit it to a jury by proper instructions, or to find upon it in the absence of a jury.” (Wright v. Los Angeles Ry. Corp., 14 Cal.2d 168, 178 [93 P.2d 135].) Here there are three theories sustained by the evidence that defendant could have avoided the accident; he could have stopped, swerved or sounded his horn.
In making the statement that the doctrine does not apply to two moving vehicles approaching an intersection the majority cites Poncino v. Reid-Murdock & Co., 136 Cal.App. 223 [28 P.2d 932], No citation of authority is made for that statement in the Poncino case. A hearing in this court was denied. As pointed out by this court in Peterson v. Burkhalter, supra, 38 Cal.2d 107, that ease was based upon the proposition that plaintiff was aware of the danger rather than that defendant did not have an opportunity to avoid it; that was the only basis for distinguishing it from Girdner v. Union Oil Co., supra, 216 Cal. 197, and otherwise the case was in effect overruled as being out of line with the Girdner case.
Johnson v. Sacramento Northern Ry., 54 Cal.App.2d 528 [129 P.2d 503], cited for the same proposition, cites in addition to the Poncino ease, only cases dealing with railroad crossing collisions where the courts have been reluctant to apply the doctrine because of a feeling that a railroad company should not be expected to stop at crossings under any circumstances. Certainly that is not true of automobiles approaching intersections. The same is true of Folger v. Richfield Oil Corp., 80 Cal.App.2d 655 [182 P.2d 337], Dailey v. Williams, 73 Cal.App.2d 427 [166 P.2d 595], Berton v. [302]Cochran, 81 Cal.App.2d 776 [185 P.2d 349], and Allin v. Snavely, 100 Cal.App.2d 411 [224 P.2d 113], which make no such statement. Moreover, as above seen, there are numerous decisions by this court applying the doctrine to moving vehicles.
There is no reason why it should not apply in such a situation considering the speed with which automobiles are now operated and the necessity for rapid reaction to avoid accidents. Here we have a person (defendant) approaching an intersection at 40 miles per hour. He sees another car approaching at the same speed on the crossroad and the driver of the car (decedent) does not observe him. When the other car was at least 50 feet from the stop sign defendant was no longer justified in assuming it would stop at the stop sign. It is not reasonable to suppose that the driver of the other car would at that point apply his brakes with full force and come to a shrieking stop. Hence when the other car was at that point the defendant had adequate opportunity to stop his ear or swerve from its path to avert the collision.
What was said by the District Court of Appeal in Bragg v. Smith, 87 Cal.App.2d 11, at page 15 [195 P.2d 546], is pertinent here:" The defendant actually discovered the situation and realized the danger while it was still possible to avoid the collision by the use of ordinary care on his part. The opportunity was clearly open to him to avoid the accident by turning either to his right or to his left. While it may be true that he had to act quickly, it is not unusual for a motorist to be confronted with such a necessity and it cannot be said, as a matter of law, that a distance of approximately 100 feet was not sufficient to enable him to have a clear chance to slightly alter the course of his vehicle. Common experience is to the contrary, and the evidence here is sufficient to support the court’s finding that a last clear chance to avoid the accident existed after the defendant actually knew that the plaintiff was in a position of danger from which he would be unable to escape by any action which he could then take. (Cady v. Sanford, 57 Cal.App. 218 [207 P. 45].) ”
It should be remembered that the trial court denied a motion on behalf of defendant for a directed verdict and submitted the case to the jury under appropriate instructions applying the last clear chance doctrine, and the jury returned a verdict in favor of plaintiffs from which it must be implied that they determined as a fact that defendant had a last [303]clear chance to avoid the collision after perceiving that decedent was in a position of peril. The trial court then granted defendant’s motion for judgment notwithstanding the verdict. Plaintiffs took an appeal from the judgment and the District Court of Appeal, Fourth Appellate District, by unanimous opinion prepared by Mr. Justice Mussell and concurred in by Mr. Presiding Justice Barnard and Mr. Justice Griffin reversed the judgment and remanded the ease to the trial court with instructions to enter judgment in conformity with the verdict of the jury. ((Cal.App.) 238 P.2d 25.) The opinion of the District Court of Appeal contains a correct statement of the facts, is well reasoned and is supported by abundant authority. The following statement is contained in the concluding paragraph of the opinion: “We conclude that there was substantial evidence to support the findings of the jury and that the trial court erred in rendering a judgment notwithstanding the verdict.”
From the foregoing it clearly appears that the trial judge was of the opinion that the last clear chance doctrine was applicable when he submitted the case to the jury and that the jury found the facts necessary to support a verdict in favor of the plaintiffs. Although the trial judge changed his mind after the verdict was returned, it was the unanimous opinion of the District Court of Appeal that the evidence warranted the submission of the case to the jury and that the question of whether or not the defendant had a last clear chance to avoid the collision was one of fact and not of law, and reversed the trial court.
The very recent case of Pfingsten v. Westenhaver, ante, p. 12, at page 19 [224 P.2d 395], reannounced the well settled rule that “Where different conclusions may reasonably be drawn from the evidence by different minds the trial court’s (jury’s) findings are not to be disturbed on appeal.” (See, also, Connor v. Owen, 28 Cal.App.2d 591, 592-593 [82 P.2d 1114].)
I do not believe it can fairly and honestly be said that the record in this ease presents a factual situation on which reasonable minds cannot differ. What has happened thus far demonstrates beyond question that reasonable minds have arrived at different conclusions on the record before us. Such being the case, under the well-settled doctrine, the issue is one of fact and not of law, and hence should be determined by the trier of fact—the jury in this case.
[304]While the majority opinion in this case will create great confusion because it is in clear conflict with numerous other decisions of this court and the District Courts of Appeal which I have cited hereinabove, of graver and more far-reaching concern is the problem that it is in direct violation of the constitutional provision that “the right of trial by jury shall be secured to all, and remain inviolate”; (Cal. Const., art I, §7). It cannot be doubted that where a factual situation is presented in a case in which litigants are entitled to a jury trial as a matter of right, and the court takes the case from the jury and decides as a matter of law that there is no isgue of fact to be determined, the litigants have been deprived of a jury trial, and the Constitution has been violated. Such is the situation in the ease at bar. While this result may seem to be unimportant in this case, it has an insidious impact on our whole constitutional structure. If judges who have taken a solemn oath to support the Constitution can ruthlessly disregard its provisions, as the majority has done here, why demand loyalty oaths from those holding positions of lesser importance ?
I would reverse the judgment and direct the trial court to enter judgment on the verdict of the jury.
Appellants’ petition for a rehearing was denied August 7, 1952. Carter, J., was of the opinion that the petition should be granted.