Bogardus v. Snyder

BISHOP, J.,

pro

tem.

Plaintiff seeks to recover damages resulting from a collision between his automobile and that of defendants, on the theory that the defendant Mrs. Snyder failed to avail herself of the last clear chance to avoid the accident. We approve of the action of the trial judge in directing the jury to bring in a verdict for the defendants.

Taking the evidence most favorable to plaintiff, we are told that both he and the defendant Mrs. Snyder entered an intersection at a rate of speed greater than that pre

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scribed by the statute, their cars coming together about the middle of the intersection. Plaintiff did not look at all toward the right, the direction from which the defendant was coming; his eyes were fixed ahead and he did not see defendants’ ear until just before it ran into his ear. The speed of plaintiff’s ear, as he entered the intersection, was “about 20 to 25 miles” per hour; the speed estimated for defendants’ car was between 30 and 35 or 40 miles per hour. When she was about 50 feet back of the paved portion of the street upon which plaintiff was driving, defendant became conscious of his approach, thanks to the alarm of her small son, and not her own vigilance. Her reaction was to step on the gas and drive straight ahead. She was so busy with herself, she testified, that she did not notice the plaintiff; she did not know where he was looking nor whether he swerved his car one way or the other.

From this evidence, reasonable minds could reach but one conclusion: Plaintiff was driving negligently, and his negligence was a contributing cause of the accident, warranting the trial court in instructing the jury to bring in a verdict for the defendants unless the facts give possible foundation for the application of the doctrine of the last clear chance. While it might seem that, factually, plaintiff’s negligence would be one of the factors contributing to the accident,' whether or not the situation was one where the last clear chance rule should be applied, legally, we are told, it ceases to be a proximate cause in those eases where the rule is applied.

(Girdner