Duenas v. Domingo

COUGHLIN, J.

This is an action to recover damages for the wrongful death of the plaintiffs’ son, Martin Dueñas, a 9-year-old boy, who was killed when struck by an automobile driven by the defendant, Ramon S. Domingo. Judgment, after verdict, was rendered in favor of the defendant, the respondent herein, and against the plaintiffs, the appellants herein.

The plaintiffs-appellants contend that the trial court erred in refusing to give their requested instruction on the doctrine of last clear chance. The defendant-respondent contends that the request for such an instruction properly was denied because there was no substantial evidence from which the jury could have found that he had actual knowledge of the boy’s position of peril in time to have avoided the accident.

The elements of the last clear chance doctrine are set forth in

Brandelius

v.

City & County of San Francisco,

47 Cal.2d 729, 743 [306 P.2d 432]. Unless there is substantial evidence in support of each of these elements a requested instruction thereon properly is refused.

(Doran

v.

City & County of San Francisco,

44 Cal.2d 477, 486 [283 P.2d 1] ;

DiSandro

v.

Griffith,

188 Cal.App.2d 428, 432 [10 Cal.Rptr. 595].) Among other things, there must be proof “that defendant knew that . . . [decedent] was in a position of danger and further knew, or in the exercise of ordinary care should have known, that . . . [decedent] was unable to escape therefrom; ...”

(Brandelius

v.

City & County of San Francisco, supra,

47 Cal.2d 729, 743.)

The issue for determination on this appeal is whether there is any substantial evidence from which the jury could have found that, prior to impact, the defendant actually knew that the deceased was in a position of danger.