Mangler v. Pacific Electric Railway Co.

DORAN, J. The actions herein were consolidated for trial, having arisen out of the same event, to wit, a collision between a truck and trailer driven by the plaintiff Mangier and owned by the plaintiff Devere, and a train owned and operated by the defendant, Pacific Electric Railway Company. Verdicts were returned in favor of the plaintiffs, and upon motions for new trial, the trial court set aside the verdicts and granted new trials.

In the language of appellants’ brief, “The issue on these appeals is limited to one question, namely, was the trial court justified in granting a new trial upon the sole ground that it gave an alleged erroneous instruction upon the application of the ‘Last Clear Chance’ doctrine?" The order granting the motion for new trial recites: “ In this action the jury was given two instructions relating to the doctrine of last clear chance. The first one was the general instruction on the subject taken from ‘BAJI’ and being No. 205 in that volume. It is not questioned that this correctly states the law. The second instruction was requested by defendants but was modified by the court. The part to which objection is made is as follows (the italicized portion being that added by the court) : ‘If the motorman did not have a clear opportunity to avoid the accident, after he actually saw or by the use of ordinary care should have seen the truck in a position of danger, then you must find that the motorman did not have a last clear chance to avoid the accident.’ . . . The effect of the instruction in our case is that the jury may decide that. [817]the defendant did not see plaintiff, and yet if they find from the evidence that by the use of ordinary care he should have seen, they may hold defendant liable. Clearly this is not the law in view of the decisions above quoted.”

The evidence in support of appellants’ theory upon which the last clear chance doctrine was predicated, showed that the plaintiff Mangier, operating a truck and trailer 60 feet in length, attempted to cross defendant’s railroad tracks; that the turn was too sharp to be made by the truck; that due to the traffic it was impossible to back up; that when Mangier stopped the truck on the track, the train was 700 to 750 feet away; that the truck was thereafter struck by the train at the front of the cab, resulting in personal injuries to the plaintiff Mangier and property damage to the plaintiff Devere.

It is the appellants’ contention that the instruction hereinbefore quoted, “constituted a correct statement of the law and was not prejudicial, ’ ’ that therefore the granting of a new trial after judgments in favor of the plaintiffs, was improper and unwarranted. The basis for this contention, as expressed in appellants’ brief, is that “The doctrine of ‘Last Clear Chance’ has been modified by leaving to the jury the question of defendant’s actual knowledge of plaintiff’s peril, his testimony to the contrary notwithstanding”; and that “the instruction properly contains the modification, to wit: ‘Or by the use of ordinary care should have seen the truck (or plaintiff) in a position of danger.’ ”