Lappin v. Alameda-Contra Costa Transit District

AGEE, J. In this personal injury action arising out of a bus-automobile collision at a level intersection on a clear day, defendant transit district appeals from a judgment entered upon a jury verdict in favor of plaintiff automobile driver.

Shattuck Avenue and Oregon Street intersect each other at right angles; Shattuck is 46 feet wide; appropriately placed stop signs require traffic on Oregon to stop before entering Shattuck; plaintiff was westbound on Oregon; the bus was southbound on Shattuck.

The front end of the bus struck the right side of the automobile. The geographic point of impact was 8 feet east of the westerly curbline of Shattuck and 4 feet south of the northerly curbline of Oregon. The central point of impact on the automobile was about 8 feet back of the front bumper.

Appellant’s only claim of error is the giving of an instrue[636]tion, admittedly proper in form, on the doctrine of last clear chance. (BAJI No. 205, revised.) The question before us is whether there is any substantial evidence to support a finding that each of the three conditions upon which the doctrine is based is present. In determining this question, we shall view the evidence in the light most favorable to the application of the doctrine and indulge in every reasonable inference in support thereof. (Daniels v. City & County of San Francisco, 40 Cal.2d 614, 617 [255 P.2d 785].)

The first of the three conditions, the existence of which was impliedly found by the jury, is that the respondent negligently placed herself in a position of danger from which she could not escape because she was totally unaware of the danger.

Appellant readily concedes the sufficiency of the evidence indicating that respondent negligently drove into the pathway of the bus and thus placed herself in a position of danger. Its argument is that there is no evidence that respondent was totally unaware of the danger.

Respondent testified that she stopped for the stop sign before entering Shattuck; that she saw the bus, which was then one block away to the north; that she thereupon proceeded into the intersection at not over 5 to 10 miles per hour; that she intended to park on Oregon in the first parking place west of the intersection; that at some point while crossing the intersection she glanced to her right and again saw the bus; that she could not say “with all sincerity” how far the bus was then away but that “My feeling was that there was nothing to be apprehensive about”; that she redirected her attention to her course of travel and was slowing down in order to park when the impact occurred; that she had no forewarning, either by horn or otherwise, of the impending collision; that her first awareness of danger was when the impact itself occurred.