Yandell Truckaway, Inc. v. Western Pacific Railroad

AGEE, J. The front end of defendant’s freight train collided with the right side of plaintiff’s truck and trailer, which were stopped on the railroad track. This occurred on a clear, dry weekday in August, about 4:30 p.m., at the Davis Street crossing, in the City of San Leandro.

Plaintiff sued for damages to the truck and defendant cross-complained for damages to the train. Trial by jury resulted in a verdict that neither party recover. Plaintiff appeals from the adverse portion of the judgment entered upon the verdict. Defendant has not appealed.

The only issue before us to determine is whether the trial court erred in refusing to instruct on last clear chance. The instruction proposed by plaintiff is admittedly correct as to form, it being drafted from BAJI 205 (rev.), which in turn is based upon Brandelius v. City & County of San Francisco, 47 Cal.2d 729 [306 P.2d 432].

The three elements necessary for the application of the doctrine are set forth in Brandelius, supra, at page 743: “ (1) that the plaintiff was in a position of danger and, by his own negligence, became unable to escape from such position by the use of ordinary care, either because it became physically impossible for him to escape or because he was totally unaware of the danger; (2) that defendant knew that plaintiff was in a position of danger and further knew, or in the exercise of ordinary care should have known, that plaintiff was unable to escape therefrom; and (3) that thereafter defendant had the last clear chance to avoid the accident by the exercise of ordinary care but failed to exercise [258]such last clear chance, and the accident occurred as a proximate result of such failure. ’ ’

The proposed instruction concludes as follows: “If all the conditions just mentioned are found by you to have existed with respect to the accident in question, then you must find against the defense of contributory negligence, because under such conditions the law holds the defendant liable for any injury suffered by the plaintiff and proximately resulting from the accident, despite the negligence of the plaintiff.”

Defendant does not contend that the evidence is insufficient to support a finding of the existence of elements (1) and (2). The controversy is narrowed to element (3). Defendant states its position as follows: ‘ ‘ Specifically, it is our contention there is no substantial evidence that after the engineer became actually aware that the truck driver was in a position of peril, the engineer had the last clear chance to avoid the accident by the exercise of ordinary care. ”