Curtis v. Pacific Electric Railway Co.

[582]

WHITE, J.,

pro tem.

This is an action brought to recover damages on account of personal injuries received by plaintiff when she was struck by defendant railway company’s passenger-carrying bus, while crossing Beverly Boulevard near its intersection with Spaulding Avenue in the city of Los Angeles, on March 23, 1934, at about 10 o’clock in the morning. Trial was had before the court, and upon findings made that while respondents were negligent, appellant was also negligent, and that their joint negligence contributed proximately to the accident, judgment was entered for defendants.

Epitomizing the facts as presented in the record before us, we find that appellant was crossing Beverly Boulevard in a southerly direction at the intersection of Spaulding Avenue, under normal and ordinary weather conditions. Spaulding Avenue ends at Beverly Boulevard, and does not extend south thereof. The attempted crossing by appellant was at the end of this block, and at an unmarked crosswalk. Eespondent railway company’s express bus, traveling east on Beverly Boulevard and driven by the latter’s employee, respondent M. F. Bidwell, collided with appellant, inflicting injuries upon which this action is predicated.

Appellant assails the judgment upon the single ground that under the facts of this case she is entitled to judgment under the doctrine of last clear chance.

The elements of the last clear chance rule have been announced in California on innumerable occasions, and are settled beyond dispute. As said in

Palmer

v.

Tschudy,

191 Cal. 696, 700 [218 Pac. 36], the last clear chance rule presupposes: 1. That plaintiff has been negligent; 2. That as a result of his negligence he is in a position of danger from which he cannot escape by the exercise of ordinary care; 3. That defendant is aware of plaintiff’s dangerous situation, under such circumstances that he realizes, or ought to realize, plaintiff’s inability to escape therefrom; 4. That defendant then has a clear chance to avoid injuring plaintiff by the exercise of ordinary care, and fails to do so.