Box v. Slooten

McCOMB, J. From a judgment in favor of plaintiff after trial before a jury in an action to recover damages for personal injuries defendant appeals.

Viewing the evidence most favorable to respondent, the essential facts are:

Diagram of the Scene of the Accident Hereinafter Described.

October 17, 1938, seventy-five years of about 7:30 P. M. age, was standing plaintiff, a woman on the curb at the [557]northeast corner of Vermont Avenue and Melbourne Street in the city of Los Angeles. She looked north and south on Vermont Avenue and did not see any automobiles approaching the intersection. She then started to walk from the east to the west side of the avenue in the northerly half of a marked pedestrian walk. She did not again look in a southerly direction on the avenue.

About the same time defendant, traveling on Vermont Avenue, was approaching the intersection in a northerly direction in his automobile about fifteen miles per hour. When he reached a point approximately thirty-five feet south of the crosswalk, he noticed plaintiff in it three or four feet from the east curb line of Vermont Avenue. He saw that her head was turned slightly to the north and that she apparently did not see him. Plaintiff continued to traverse the pedestrian walk in a westerly direction, and, as she approached the middle of Vermont Avenue, turned her head slightly to the right watching two southbound cars which were approaching the intersection. Defendant without giving any warning signal continued on his course, gradually lessening his speed. As he approached plaintiff he swerved to the west of the center line of Vermont Avenue and then swerved to the east, the right running board and the stanchion back of the front door of his automobile striking plaintiff and causing her personal injuries.

Defendant relies for reversal of the judgment on these propositions:

First: The court committed prejudicial error in instructing the jury as follows:

“There has grown up in our law a certain reasoning process that we sometimes call to our aid in analyzing the facts of an accident case, and which is known as the Doctrine of Last Clear Chance. It is permissible to use the doctrine only after we first find, and you may not use it unless and until you first shall have found, that in the events leading up to the accident in question, both the plaintiff and defendant were negligent.