Wechlo v. Winyard

Opinion

LILLIE, J. This cause of action arose out of an automobile-pedestrian collision on East Anaheim Street in the Wilmington area. Plaintiff appeals from judgment in defendant’s favor entered on a jury verdict. The sole issue before us involves the trial court’s refusal to give plaintiff’s requested instruction on last clear chance (BATI No. 4.20).

[993]Viewing the evidence in a light most favorable to plaintiff’s case (Bone-brake v. McCormick, 35 Cal.2d 16, 19 [215 P.2d 728]), we summarize the relevant facts: the accident occurred between 7:30 and 8 on the evening of August 9, 1971, when plaintiff, an elderly man (about 84 years of age), started across Anaheim in the middle of the block and approximately 250 feet from the nearest available crosswalk (at Banning and Anaheim) where there was a traffic control signal. At that point Anaheim has four traffic lanes, two eastbound and two westbound, together with two curb lanes for parking; street lights on both sides of Anaheim were on, and according to the police report, the accident occurred when it was nighttime and in a business district.

The actual impact was witnessed by Henry Cantrell and Mrs. Francie Wasowski, both of whom were called by plaintiff. Mr. Cantrell was driving west on Anaheim near its intersection with Banning; upon reaching Banning and proceeding through the green signal, he first observed plaintiff (who was then about 200 feet ahead) entering the westbound lane of Anaheim from the traffic side of the curb lane. According to Cantrell, who slowed down almost to a stop to let him pass, plaintiff was dressed in dark clothing and walking “hurriedly” across the street; when Cantrell first saw defendant’s car, after his initial observation of plaintiff, it was about three blocks away in the eastbound lane next to the center line and traveling at a speed of 50-60 miles per hour; he continued to watch defendant’s car as it continued eastward toward the scene of the impending accident at the same speed (50-60 miles per hour); it commenced to slow down when it reached a point about three car lengths from plaintiff and, after changing lanes, struck him when he was about three feet (a car’s width) from the cars parked in the curb lane. Cantrell testified that at the moment of impact the speed of defendant’s vehicle was about 40 miles per hour, and plaintiff was thrown about 30-40 feet. At no time during the foregoing series of events was defendant’s vision obstructed by other cars, either on his right or left.