Wylie v. Vellis

KAUFMAN, J. This is an appeal from a judgment after jury verdict, in the sum of $20,000 in favor of respondent Charles M. Wylie, in an action for personal injuries arising out of an intersection collision in San Francisco.

Appellant’s sole claim of error on this appeal is that the trial court should not have given the instruction on the doctrine of last clear chance in view of the evidence herein. It is conceded that the instruction itself was correct, but it is contended that it was inapplicable in this case.

The accident occurred on the afternoon of July 2, 1951, at the intersection of 28th Avenue and Kirkham Street in San Francisco. Respondent Wylie was driving a 1940 Chevrolet panel truck in a northerly direction on 28th Avenue, while appellant and his wife were proceeding east in Kirk-ham Street in their new 1951 Frazer automobile. Respondent looked to his left as he approached the intersection and saw no car approaching. He slowed down and was traveling at about 10 miles per hour as he entered the intersection. He looked to his right after he passed the crosswalk. When he was about in the center of the intersection respondent first saw the appellant’s car approaching and it was then very close to him. The collision occurred when appellant’s car had traveled about 8 feet beyond the center of 28th Avenue and 3 to 5 feet north of the center of Kirkham Street.

Appellant testified that he was about 15 feet from the intersection when he first saw respondent who appeared to be going at between 3 and 5 miles per hour just as he approached the intersection. He was about 62 feet from the point of impact when he first saw respondent. His car was in second gear at all times in the intersection.

Appellant observed that respondent as he was approaching the intersection was looking straight ahead, and that he continued to look straight ahead at all times from the first time appellant saw him until the accident occurred, that respondent appeared dazed. Appellant admitted that he had no reason to suppose at any time prior to the impact that respondent knew of appellant’s approach. There was nothing which prevented appellant from applying his brakes, or from sounding his horn to arouse respondent. Although appellant turned his car in an effort to avoid the collision after he had passed beyond the center of the intersection, he admitted that there was nothing physically preventing him from turning to the left before he arrived at the center of 28th Avenue. He testified that from the time he first [856]