Keller v. Arden Farms, Inc.

WOOD (W. J.), J. Plaintiff commenced this action to recover for injuries which he suffered when his Lincoln Zephyr automobile collided with a milk truck owned by defendant Arden Farms Company and driven by defendant Lewis. Defendant Brant was “helper” on the'truck for dé-' fendant Lewis. The jury returned a verdict in favor of defendants and from the resulting judgment plaintiff prosecutes this appeal.

It is conceded that plaintiff was guilty of negligence in the operation of his own automobile and that his negligence contributed to his injuries. Plaintiff contends, however, that defendants are liable under the doctrine of last clear chance. The trial court instructed the jury on the rules pertaining to this doctrine and it is now claimed that the instructions on this subject were prejudicially erroneous. Defendant, without conceding that the instructions were erroneous, contends that there was no justification for giving any instruction on the doctrine of last clear chance and that any errors that may be found in the instructions need not be given consideration.

The accident occurred at about 8:00 a. m. in the morning of July 25, 1940, on a winding road 36 feet wide in Griffith Park in the city of Los Angeles. Defendant Lewis testified that he first observed plaintiff’s approaching automobile when it was 300 yards distant at which time it was being operated on the wrong side of the road, rounding a curve. He observed plaintiff's car when it was about 100 yards distant, at which time it was on its own side of the road, where it continued up to a point about 50 feet away from the truck. It then suddenly and without warning swerved toward the center of the road and struck the side of the truck back of the cab. He testified that plaintiff’s automobile was being driven at approximately 35 miles per hour and the truck approximately 20 miles per hour. When plaintiff’s car started to swerve [508]toward the truck Lewis tried to pull over to the side of the road and at the same time applied his brakes, the truck being almost at a standstill at the time of the collision. Defendant Lewis further testified that he watched the course of the car and did not look at the driver; that he did not know until after the collision whether the driver of plaintiff’s car was a man or a woman. Defendant Brant testified that he saw plaintiff’s automobile when it was about 700 feet away, at which time it was on the wrong side of the road; that it travelled on the wrong side for about 100 feet and then went back to its own side of the road and continued on its own side of the road until it was approximately 50 feet from the truck, at which time it pulled over onto the truck. Defendant Brant further testified that he was looking at the car and did not observe the driver of the car.