Lopez v. Knight

PEEK, J.

This is an appeal by plaintiff from a judgment in favor of defendant in an action for personal injuries. The complaint followed the usual allegations relating to the negligent operation of the car by the defendant and the resulting injuries to the plaintiff. The answer admitted the ownership and operation of the ear by defendant, denied generally the allegations of negligence, and as affirmative defenses alleged that the accident was unavoidable and that it was the result of the contributory negligence of plaintiff.

No question is raised concerning the sufficiency of the evidence. The sole contention on appeal relates to certain instructions—two of which were given and one which was not. The facts necessary for an understanding of the case are that while plaintiff was either walking or trotting across Highway 99 near the city of Merced he was struck by the automobile driven by the defendant. As a result of the injuries sustained plaintiff, at the time of trial, had no recollection of the happening of the accident. Plaintiff’s case consisted solely of his testimony concerning events immediately prior to the accident and the testimony of a police officer concerning the physical facts surrounding the accident. Plaintiff also called defendant under section 2055 of the Code of Civil Procedure.

At the conclusion of the trial numerous instructions were offered by both parties, many of which were given to the jury. Following the charge but before the case was submitted

[389]

to the jury, plaintiff’s counsel, believing a conflict was apparent in the instructions (by reason of certain formula instructions given at defendant’s request relative to contributory negligence and to the question of last clear chance) requested a conference in the judge’s chambers. The trial judge stated that he was not going to take the time to write out a formal instruction but he would give an oral instruction to the jury clarifying the question so raised by plaintiff. Thereafter when the court reconvened the judge instructed the jury as follows:

“

A question has arisen, ladies and gentlemen of the jury, whether the instructions that I have just read to you are conflicting. The proposition resolves itself to the question of whether the doctrine of contributory negligence applies, or the doctrine of last clear chance applies. I have stated to you that if you find that the plaintiff was guilty of contributory negligence, he cannot recover. That is true unless you find that the doctrine of last clear chance applies. That eliminates contributory negligence from the case.