Shuster v. Weeks

DRAPER, P. J. Judgment was entered upon jury verdict in favor of defendant in this personal injury action. Plaintiff appeals on a settled statement and partial transcript. He contends that the trial court erred in giving an instruction on imminent peril, and in refusing one on last clear chance.

Plaintiff was walking across Occidental Road when struck. Defendant had driven his pickup truck north along Graven-stein Highway and made a 90-degree left turn into Occidental. He testified that he was traveling 15 to 20 miles per hour when he first saw plaintiff. Plaintiff neither heard nor saw any automobile before he was struck, and has no recollection of what occurred after impact. There is no direct evidence fixing the point of impact, but it could have been no farther west than the place where defendant’s vehicle came to a stop. This was 45 feet west of the stop line marking the edge of Gravenstein Highway. Defendant variously testified that plaintiff was 3 to 20 feet away when defendant first saw him. He also testified that he first saw plaintiff when defendant straightened his truck after completing the turn into Occidental. He applied his brakes when he first saw plaintiff. Skid marks 21 feet in length from the right wheels and 9 feet from the left wheels were laid down by defendant’s vehicle.

At defendant’s request, the court gave the standard instruction on imminent peril (B.A.J.I. 137). Appellant argues, in part, that the instruction was erroneous because it gave defendant the benefit of the imminent peril doctrine even if his own negligence caused the emergency. This claim is without basis. The instruction by its terms applies only to one “who without negligence on his part,” is suddenly and unexpectedly confronted with peril. Moreover, at plaintiff’s [227]request, the jury was specifically told that “a defendant cannot shield himself behind an emergency created by his own negligence, ’ ’ and this admonition was twice repeated in somewhat different phrasing. Plaintiff also asserts that the facts do not warrant the instruction. His argument seems to be that, if one statement of defendant is accepted he had too little time to permit any alternative action, and that under a view of the facts based on inference he had too much time to permit the peril to be deemed sudden or unexpected. Aside from the inconsistency of these arguments, we are satisfied that a reasonable view of the evidence warranted the instruction.

Plaintiff’s principal attack is upon the refusal to instruct on last clear chance. He seems to argue that evidence which warrants instruction on imminent peril necessarily requires instruction on last clear chance. This contention is contrary to authority (Rodabaugh v. Tekus, 39 Cal.2d 290, 296 [246 P.2d 663]).