Bailey v. Wilson

CRAIL, P. J.

This is an appeal in a personal injury action from an order of the superior court granting a new trial on the ground of “errors of law” after a verdict in favor of the defendant. The defendant assigns as error the abuse of the court’s discretion in granting the new trial. The court refused to give to the jury instructions requested by the plaintiffs, covering the doctrine of last clear chance, and the sole question necessary for determination on this appeal is whether the court should have instructed the jury on this doctrine. If the court should have done so the order must be affirmed.

The statement of facts set forth below is taken from the defendant’s brief although it is somewhat boiled down: The accident occurred at night upon a boulevard in South Pasadena which had been newly paved with asphalt and crushed rock, making the surface thereof black in color. Decedent, dressed in black, was going in a southerly direction across Pasadena Avenue at a place where there was no intersection, crosswalk or pedestrian crossing. Defendant was driving in a westerly direction on Pasadena Avenue down a 5 per cent grade. He testified that he was traveling not as fast as 30 miles an hour; that he became aware of something in the roadway in front of him but did not identify it as a human being until he was within 12 or 15 feet; he then determined it was a woman walking slowly away from him and facing southwest; she gave no evidence of hearing the sound of the wheels which were then screeching ; he applied his brakes with full force and kept them

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so applied until his car came to a stop. He veered his car slightly to his right. AYhen he applied his brakes and locked the wheels of his car, it began to skid and the tires screeched. The skid-marks made b3r the tires were measured by a police officer and another witness for plaintiffs soon after the accident, and were found to extend back from the place of impact for a distance of 56 feet. The car stopped practically at the point of impact, moving not over a foot thereafter. Decedent was struck by the left, front fender of defendant’s car. Defendant testified that his car tripped the decedent rather than struck her; and that he believed that he would not reach her at all, but expected to stop short of her. The tires and lights of defendant’s car were in good condition. The police officer examined defendant’s car after the accident, and found no damage to it, not even a scratch. The inspection of the autopsy surgeon showed that, aside from a laceration on the inside of the right thumb, there were no injuries or marks on the body of decedent, except on the head, death being due to a brain concussion. The husband of the decedent testified that prior to the accident his wife was in good health; that she had no deformities of any sort; that her hearing and eyesight were good; and that her powers of locomotion and her ability to walk were pretty good for a woman of her weight.