Barcelone v. Melani

DRAPER, J.

This is an action for wrongful death. Jury verdict was for defendants, and plaintiff appeals from the judgment entered thereon. The sole error urged is the court’s refusal of plaintiff’s requested instruction on the doctrine of last clear chance.

Respondents point out that the form of the instruction requested (BAJI 205) has been disapproved

(Brandelius

v.

City

&

County of San

Francisco, 47 Cal.2d 729 [306 P.2d 432]). They rely upon the rule that the trial court is not bound to give an offered instruction which is erroneous in form. However, the Brandelius decision was rendered 6 months after trial of this case. Until that decision, the form used by appellant had at least the tacit approval of the appel

[633]

late courts. Appellant should not be deprived of the right to trial upon the issue of last clear chance because of the later determination that her offered instruction was erroneous

(Parrott

v.

Furesz,

153 Cal.App.2d 26 [314 P.2d 47]). Thus the question before us is whether the evidence required a proper instruction upon this subject.

The doctrine of last clear chance is properly invoked only if the evidence warrants findings: “(1) that the plaintiff was in a position of danger and, by his own negligence, became unable to escape from such position by the use of ordinary care, either because it became physically impossible for him to escape or because he was totally unaware of the danger; (2) that defendant knew that plaintiff was in a position of danger and further knew, or in the exercise of ordinary care should have known, that plaintiff was unable to escape therefrom; and (3) that thereafter defendant had the last clear chance to avoid the accident by the exercise of ordinary care but failed to exercise such last clear chance, and the accident occurred as a proximate result of such failure.”