Erwin v. Morris

McCOMB, J.,

pro tem.

This is an appeal by defendants from a judgment in favor of plaintiff for $5,000 after a trial before a jury.

Viewing the evidence most favorable to plaintiff

{Ah Gett

v.

Carr,

3 Cal. App. 47, 48 [84 Pac. 458]), the facts in the instant case are:

Plaintiff while traveling in a westerly direction on Telegraph Road, a highway which runs east and west, stopped his ear on the north half of the highway for the purpose of repairing his windshield wiper, it having rained shortly before. An automobile owned by defendant, Paul Morris, was being driven by his codefendant, Lena Morris, in a westerly direction on Telegraph Road, when she observed approximately three-fifths of a mile in front of her the parked car of plaintiff. She continued, to travel on the north half of the highway until she reached a point 50 to 60 feet behind plaintiff’s automobile. At this time she turned to the left across the center line of the highway, in order to pass the parked car. About one car length to the rear of plaintiff’s automobile the car she was driving skidded, the front of it

[170]

coming into contact with the left rear corner of plaintiff’s automobile.

Defendants rely for reversal of the judgment on the proposition :

That the trial court committed prejudicial error in submitting instructions to the jury on the doctrin'e of last clear chance.

The doctrine of

last clear chance

presupposes evidence or inferences properly deducible therefrom of the following elements:

First: Negligence of plaintiff;

Second: That as a result thereof plaintiff is in a situation of danger from which he cannot escape by the exercise of ordinary care;

Third: That the defendant is aware of plaintiff’s dangerous situation under such circumstances, that he realizes, or ought to realize, plaintiff’s inability to escape therefrom; and,