Opinion
THOMPSON, J. Appellant, the plaintiff in a personal injury action, has appealed from an adverse judgment entered after a jury verdict for the [345]defendant (respondent). The sole issue raised by this appeal concerns the propriety of the action of the trial court in refusing a jury instruction tendered by appellant on the doctrine of last clear chance. The instruction as tendered is conceded to be a correct statement of the law. The only question presented is thus the existence of evidence in the record to support the giving of the instruction. In determining the presence or absence of that evidence, we are required to view the record in the light most favorable to the instruction since a party is entitled to an instruction on his theory of the case if there is evidence to support the theory. We conclude that the evidence presented to the trial court in the case at bench required that the tendered instruction on last clear chance be given. Accordingly, we reverse the judgment.
Facts
Stated in the light most favorable to appellant’s theory of the applicability of the doctrine of last clear chance, the record discloses the following. The accident out of which the case at bench arose occurred at the juncture of the transition road from the eastbound Ventura Freeway with the southbound San Diego Freeway. The transition road is two lanes wide and the San Diego Freeway four lines in width at that point. At the junction there is a triangular area approximately 320 feet in length tapering from a width of over 20 feet at the north to a point at the south. The triangular area is marked with 8-inch chevron-shaped stripes. The area as diagrammed by the parties in the trial court, together with the lane designations employed at the trial, is as follows [Seep. 346, infra]:
At 4:30 p.m., appellant was driving his Opel station wagon southbound on the transition road from the Ventura Freeway to the San Diego Freeway. The car overheated and stalled. Appellant was able to reach the shoulder of the transition road with the car. He refused a tow. After the Opel had cooled, appellant was able to start it. The car, however, continued to malfunction and appellant was forced to stop it on the triangle marked with the chevron-shaped stripes. The car was stopped between the “number 2 lane” (the right or most westerly lane of the San Diego Freeway) and the “number 3 lane” (the left or most easterly lane of the transition road). It was well clear of both the “number 2” and “number 3” lanes. Appellant did not turn on his blinker signal or his lights. He remained in the car out of fear for his safety.
Approximately five minutes after appellant’s car stopped in the triangle, respondent approached driving south in the “number 2” lane (the most westerly or extreme right lane of the San Diego Freeway). Respondent was travelling approximately 55 miles per hour. His intended route of travel required that he exit the freeway at the Valley Vista off-ramp. To do so, he [347]was required to cross the “number 3” and “number 4” lanes (the two lanes constituting the transition road).
[346]
[347]The portion of the triangle in which appellant’s vehicle was stopped can be seen from a point in the “number 2 lane” approximately 400 feet to the north. Respondent could see for approximately one-quarter of a mile ahead. Respondent testified that as he approached the triangle and when he had reached a distance of 300 to 350 feet from where appellant’s car was stopped, he looked to his right for a second and one-half to two seconds in order to determine the flow of traffic on the transition road so as to permit him to cross it to the Valley Vista off-ramp. Respondent testified, also, that he did not in fact see appellant’s stopped automobile until he was 100 to 130 feet away from it. Respondent was still traveling in the “number 2 lane” (the westernmost or far right lane of the San Diego Freeway) when he actually saw appellant’s car.1 In a fashion that is unexplained by respondent’s testimony or otherwise, respondent’s car left the “number 2 lane” and cut into the triangle where it hit appellant’s car. Respondent’s vehicle left 48 feet of four-wheel skid marks running due south on the pavement.
Last Clear Chance
A requested jury instruction on last clear chance must be given if there is evidence of each of the following: (1) negligence of the plaintiff which has placed him in a position of danger from which he cannot escape by the exercise of ordinary care either because of a physical impossibility to do so or because he is totally unaware of his danger; (2) knowledge of the defendant that the plaintiff is in a position of danger; (3) knowledge by the defendant of the plaintiff’s inability to escape from the danger or the existence of circumstances leading to the inference that the defendant in the exercise of ordinary care should have known that fact; (4) the existence of the defendant’s last clear chance to avoid the accident by the exercise of ordinary care; (5) the failure of the defendant to exercise that care; and (6) injury to the plaintiff as a result of the defendant’s failure to exercise the due care required of him to exercise his last clear chance to avoid the accident. (Brandelius v. City & County of San Francisco, 47 Cal.2d 729, 743 [306 P.2d 432]; Spann v. Ballesty, 276 Cal.App.2d 754 [81 Cal.Rptr. 229].)
Plaintiff’s position of danger. Evidence of the first factor necessary to the giving of the last clear chance' instruction is present in the record. Appellant, at a peak traffic hour, drove his malfunctioning automobile from [348]a position of relative safety on the freeway shoulder to a position of danger where it stalled. Once there, he failed to activate his blinker signal or lights. Appellant remained in his vehicle at the juncture of the two freeway lanes because of fear for his safety. The jury properly could have determined that appellant’s negligence placed him in a position of danger from which he could not escape by the exercise of ordinary care.
Knowledge by defendant. While California adheres to the rule that the doctrine of last clear chance is applicable only if the defendant has actual knowledge of the plaintiff’s position of peril, that knowledge may be established by an inference drawn from circumstantial evidence. The jury is not required to believe the defendant’s testimony with respect to discovery of the peril. (Brandelius v. City & County of San Francisco, 47 Cal.2d 729, 745 [306 P.2d 432].) Evidence that the defendant could plainly have seen the peril if he had looked is sufficient to support the necessary inference of knowledge. (Brandelius v. City & County of San Francisco, supra, 47 Cal.2d 729, 745; Desherow v. Rhodes, 1 Cal.App.3d 733, 747 [82 Cal.Rptr. 138]; Spann v. Ballesty, 276 Cal.App.2d 754 [81 Cal.Rptr. 229]; Espinoza v. Rossini, 247 Cal.App.2d 40 [55 Cal.Rptr. 205]; Fry v. Young, 267 Cal.App.2d 340 [73 Cal.Rptr. 62].) Here there is evidence that appellant’s position of peril was plainly visible to respondent from a distance of 400 feet.
Knowledge by defendant of plaintiff’s inability to escape. The same evidence which would justify an inference that respondent had knowledge of appellant’s peril also justifies the inference that respondent knew of appellant’s inability to escape from it. (Brandelius v. City & County of San Francisco, supra, 47 Cal.2d 729, 745 [306 P.2d 432].) The jury could properly have inferred from respondent’s unobstructed view of approximately 400 feet that he in fact observed appellant’s vehicle stopped on the triangle from that distance. Once that inference was drawn, the jury was entitled to reach the further inference that respondent in fact knew of appellant’s position of danger. It was also entitled to conclude that the respondent, in the exercise of ordinary care, should have known that appellant was unable to escape. Common experience of all who drive the freeways indicates that a vehicle stopped on the division between merging lanes of traffic is in a dangerous position from which escape is impossible.
Defendant’s last clear chance to avoid the accident. The doctrine of last clear chance is applicable only if the defendant, after learning of the plaintiff’s peril, has a clear opportunity to avoid an accident by the exercise of ordinary care. (Kaake v. Lott, 252 Cal.App.2d 895 [60 Cal.Rptr. 843].) The presence of that opportunity of necessity depends upon the facts of the [349]individual case. The most important of those facts are the time available to the defendant to act and the measures necessary to avoid the accident. Here respondent was travelling at the rate of approximately 80 feet per second. If the jury were to infer from the evidence of ability to see respondent’s vehicle from a distance of 400 feet that respondent did in fact see appellant’s peril from that distance, respondent, had five seconds in which to react to the danger. The action required of respondent in order to avoid the accident was to say the least minimal. He need only have continued to travel as he had been travelling in the “number 2 lane” in which case he would have avoided appellant’s car. Instead, respondent swerved without apparent reason into the “triangle” and caused the accident. The jury could well have inferred from that evidence that a reasonable man would not have turned his vehicle after acquiring knowledge of appellant’s peril. It could have inferred also that respondent did not act reasonably. The jury could have drawn that same inference if they accepted as true respondent’s testimony that he did not see appellant’s car until he was 130 feet from it. While respondent’s time to react under those circumstances would be only a second and one-half, no action was required on his part to avoid the accident. Respondent’s last clear chance to avoid the collision consisted of his maintaining his course. If he had done so, no accident would have resulted. The jury was entitled to conclude that a reasonable man would not have turned his automobile so that it pointed at a stalled car although he learned of the stalled car only a second and one-half prior to turning.
It is the interplay of time to react and action necessary to avoid the accident which distinguishes the case at bench from the decisions relied upon by respondent. Those decisions involve situations where some substantial action on the part of the defendant was required in order to avoid an accident and where there was not a reasonable time in which to take that action.
Failure of defendant to exercise due care and causation. The jury was entitled to infer that respondent in turning his automobile from its course in the “number 2 lane” to a path which put it on a collision course with appellant’s stalled automobile was exercising something less than ordinary care.
The argument is made that respondent’s position in the “number 2 lane” is not significant since he may have commenced his turning maneuver within that lane before he first saw respondent’s vehicle. The argument ignores the record, particularly the exhibits which disclose the nature of the confluence of the San Diego Freeway and the transition road. If, as the jury was entitled to infer, respondent saw appellant’s vehicle from a distance of 400 feet, he would not then have started to cross to the transition road.
The argument is also made that “no sane man” observing a vehicle on the [350]divider strip would have attempted to cross it. The argument could be significant if this court were the trier of fact, but it is irrelevant to our function on appeal. We are required merely to determine whether the jury could properly have concluded from the evidence that respondent attempted such a maneuver. The jury could so have inferred. A “sane” but negligent driver might have determined, for example, that he could clear the stalled vehicle to its right. The jurors need not have possessed the driving skills of a Mario Andretti to know from common experience that a driver attempting to pass the stalled vehicle in that fashion at high speed might frustrate his ability to do so by such a vigorous application of his brakes as to leave 48 feet of four-wheel locked skid marks on the pavement.
There is no argument made that respondent’s conduct was not the proximate cause of appellant’s injury.
Conclusion
There is in the record substantial evidence upon which the jury could have found that each of the facts necessary to the application of the doctrine of last clear chance was present. Under these circumstances, it was prejudicial error for the trial court to refuse to instruct on the doctrine.
The judgment is reversed.
Lillie, Acting P. J., concurred.
Respondent testified that appellant’s vehicle was also in the number 2 lane. The jury was, of course, free to accept part of his testimony and to disregard other portions of it.