Ellerman v. Pacific Electric Railway Co.

STEPHENS, P. J. Upon petition for rehearing our attention has been called to some inaccuracies in the statement of facts, and in correcting them we have concluded to enlarge somewhat upon our reasons for affirming the judgment. The former opinion is therefore stricken and the following substituted in its stead.

Plaintiff brought suit for damages against defendants. When all of the evidence at the trial was in, defendants made and the court granted a motion for a directed verdict. The [387]jury accordingly rendered its verdict in favor of defendants and this appeal is from the judgment entered thereon.

There is but one ultimate question in the case: Was there evidence sufficient to raise an issue as to the last clear chance of defendants to avoid the collision causing the injuries? Negligence is a necessary element in the doctrine of the last clear chance. (Young v. Southern Pacific Co., 189 Cal. 746 [210 Pac. 259].)

The accident happened in open country, although within the city limits of Santa Monica. An interurban electric railroad motor passenger car was traveling 30 to 45 miles per hour on its own right of way. Most of the witnesses estimate its speed at 35 miles per hour. An expert for plaintiff testified that the car could stop within 115 or 120 feet at a speed of 25 miles per hour, within 200 or 210 feet going 35 miles per hour and within 250 or 260 feet at 40 miles per hour. When the electric car was about 350 feet from a well-traveled boulevard crossing at grade, appellant’s sedan-type automobile was something like 400 feet from and approaching the crossing at a rate of 30 to 50 miles per hour. Plaintiff himself says he was traveling about 30 miles per hour. All of these speeds and distances are estimates of witnesses who saw the events from different places. The automobile driver, appellant, was driving with all windows completely closed, but his vision was clear and no obstruction shut off the view of the track for several hundred feet. He knew of the railroad but had never observed a passenger car being operated over it, and did not on this occasion observe the car at all. He had seen freight cars operated thereon. Nothing was the matter with his automobile. As the two vehicles approached the crossing with little if any change of speed (some witnesses say the automobile slackened and then accelerated speed shortly before attempting to cross) the motorman observed the automobile and blew his whistle a block away, blowing one long blast that continued up to the time of the collision which resulted. When within 15 or 20 feet of the crossing the motorman applied his emergency brakes, but the left front of his car hit the left rear of the automobile, badly wrecking it and throwing it about 60 feet. There is no doubt as to the serious injury to appellant.