Zerbo v. Electrical Products Corp.

California Supreme Court Jun 11, 1931 No. Docket No. S.F. 13430.Published

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Holding. The court held that the trial court did not err in instructing the jury on the doctrine of last clear chance, as the evidence allowed for a reasonable inference that the defendant could have avoided the accident. Furthermore, the court found no error in the instructions regarding future damages or the refusal of requested instructions that were covered in substance elsewhere.

Issues

Whether the trial court erred in instructing the jury on the doctrine of last clear chance.
Whether the trial court erred in refusing to give two requested instructions that were covered in substance elsewhere.
Whether the instruction on future damages failed to meet the requirement of certainty under Civil Code section 3283.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The evidence presented on the record here is not in such a state that we may say, as a matter of law, that the jury could not reasonably have inferred that the defendant Steinberg had the last clear chance to avoid the injury.”

“The contention is without merit, for although the word “certain” does not appear in the instruction as given, nevertheless the element of certainty is present and there can be no room for conjecture”

THE COURT.

This appeal is from a judgment entered on a verdict for the plaintiff in an action for damages for personal injuries.

The plaintiff was crossing Stockton Street in an easterly direction south of the center line of the intersection of that street with Vallejo Street in the city of San Francisco. The defendant Steinberg was driving his car in a southerly direction along Stockton Street. The evidence was conflicting as to whether the plaintiff attempted to cross Stockton Street from its westerly curb at the regular crossing lane for pedestrians at the corner, or whether she stepped out from behind a parked car at a point south of the corner. It was in evidence that there were skid marks from the defendant Stein-berg’s car commencing almost at the entrance of the intersection and continuing for about thirty or thirty-five feet before his car struck the plaintiff. The defendant was driving west of the center line of Stockton Street along the rails of the south-bound Stockton Street car tracks.

[735]

The main assignment of error is that the trial court erred in giving an instruction to the jury on the doctrine of last clear chance, on the ground that there is no testimony which legally justified an instruction on that subject. The question for our consideration, however, is not whether in any case where a pedestrian is struck by an automobile should the doctrine of last clear chance apply. If the views of the appellants be adopted, there would seem to be no opportunity in any such case for the application of that doctrine. The question here is whether under all of the facts the jury would be. justified in basing its verdict on that theory, and if so, then the court has not erred in including that theory in its instructions to the jury. In the case of

Bocha

Garcia,

203 Cal. 167 [263 Pac. 238], this court was of the opinion that the verdict could be sustained on an inference which the jury could reasonably draw that the defendant had the last clear chance to prevent the accident, under a state of facts which was not any stronger to support the giving of the instruction than are the facts in the present case. In

Zerbo v. Electrical Products Corp.

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THE COURT.

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