Hopkins v. Carter

VALLEE, J.

Appeal by plaintiffs, husband and wife, from a judgment entered upon a verdict for defendant in an action for damages for personal injuries and property damage resulting from a collision between plaintiffs’ and defendant’s automobiles. As no appeal lies from an order denying a motion for a new trial, plaintiffs’ appeal therefrom is dismissed.

The principal question is whether the court erred in refusing to instruct the jury on the doctrine of last clear chance. The form of the instructions is not in question.

In determining this question, we state the evidence in the light “most favorable to the contention that the doctrine is applicable . . . since plaintiff is entitled to an instruction thereon if the evidence so viewed could establish the elements of the doctrine. [Citations.] ”

(Selinsky

v.

Olsen,

38 Cal.2d 102, 104 [237 P.2d 645].)

The collision occurred on May 18, 1949, about 8 p. m., at the intersection of Foothill Boulevard and Maelay Avenue. Foothill Boulevard, an east-west street, is a through highway (Veh. Code, § 82.5). Stop signs are located on the northwest and southeast corners of Maelay where it intersects Foothill. Although it was dark, the intersection was well lighted by three service stations located on the northwest, southwest, and southeast corners. It was drizzling, and while the pavement was wet it was not slick. Plaintiff Jeanette Hopkins, called plaintiff, was driving plaintiffs’ ear westerly on Foothill between 30 and 35 miles an hour. Just prior to the accident, defendant had been getting gasoline at the service station located on the northwest corner of the intersection.

Plaintiff testified she started slowing down some four or five or six car lengths back from the intersection. She came

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to a complete stop in the intersection to let an easthonnd car pass. While in this position two cars passed her on her right, going west, and passed in front of defendant “while he was sitting on the driveway” of the service station. The intersection being clear, she then proceeded to make her left hand turn. When “approximately half of my car was past the intersection of Maclay ... I first noticed the lights shine into my car . . . and I knew the car [defendant’s] was coming pretty rapidly ... I was in second gear when I proceeded to make my left hand turn, so I immediately stepped on the throttle trying to avoid the accident, to get out of the way. Because I knew in that position, I could not possibly apply my brakes and get out of the way to avoid the accident. ’ ’ She was traveling approximately 12 or 13 miles an hour while attempting the turn. At the time of the impact she was going 11 between eighteen and twenty miles an hour. ’ ’ Plaintiffs ’ ear was struck almost dead center.