Lasch v. Edgar

MARKS, Acting P. J.

This is an appeal from an order granting a motion for a new trial in a motor vehicle collision case after the jury had returned a verdict in favor of plaintiff in the sum of $3300. The order did not specify the insufficiency of the evidence as a ground for granting the new trial.

Plaintiff presents but one ground for reversal of the order. He states the giving of an instruction proposed by him on the doctrine of the last clear chance furnished the sole reason for granting the motion in the trial court. He argues that there was no prejudicial error growing out of the giving of this instruction.

The challenged instruction reads as follows: “You are instructed that if you find from the evidence that the plaintiff has been negligent, and, as a result thereof, is in a position of danger which he cannot by the exercise of ordinary care escape, including instances where it is physically

[728]

impossible for him to escape as well as instances where he is totally

aware

of his danger and for that reason unable to escape,

and the defendant either has knowledge of said situartion, or in the exercise of ordinary care should have knowledge that the plaintiff cannot escape from said situation,

and the defendant has the last clear chance to avoid the accident by exercising ordinary care and fails to do so, and the accident results and the plaintiff is injured as the proximate result of such failure to use ordinary care, contributory negligence on the part of the plaintiff or person injured will not defeat his recovery.” (Emphasis ours.)

The use of the word ‘ ‘ aware ’ ’ in the instruction may have been the result of a typographical error as there seems to have been an attempt to state the oblivious from danger rule which was rejected in

Rasmussen

v.

Fresno Traction Co.,

15 Cal. App. (2d) 356 [59 Pac. (2d) 617], as inapplicable to the facts of that case.