37 Wn.2d 363, JACOB F. SARCHETT, Appellant, v. FRANK B. FIDLER et al., Respondents
[No. 31358. En Banc. Supreme Court November 14, 1950.]
JACOB F. SARCHETT, Appellant, v. FRANK B. FIDLER et al.,
Respondents.«1»

[1] There can be no question but that appellant was grossly negligent in crossing the highway as he did. Shelton v. Bennett, 32 Wn. (2d) 529, 202 P. (2d) 461. Respondent's car was in plain sight and, apparently, appellant entirely disregarded the fact that motor traffic would probably be proceeding along the highway from the west, in the appropriate lane for eastbound traffic. The angle at which he was crossing the road was such that he would not observe eastbound traffic unless he turned his head to his left.

William C. Bump, called as a witness by respondent, testified that he was not acquainted with any party to the action; that he was in the real-estate business; that, at the time of the accident, his office was on the north side of the Bothell highway, being the building to which appellant was going; that, when the accident occurred, the pavement was wet; that the witness was standing in the doorway to his office and saw appellant leave his car and step onto the paved highway, and that he then changed his position to a large window in his office, from which he had a clear view of the highway, and observed respondent's car approaching from the west. He testified that appellant started across the highway on a diagonal course, his back being toward respondent's car, which was approaching along the outside lane. The witness then testified:

". . . I saw the whole thing from the window. I saw the car approaching, I saw the pedestrian stop, the plaintiff stop. . . . Q. Now, sir, just tell the jury what the plaintiff did. A. He walked out into the street, approximately halfway across and there he hesitated, stopped momentarily, and he turned with his back to the oncoming traffic across the street on a diagonal. Q. Now, did you see the direction

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taken by the defendant's car? A. I saw the defendant's car coming up the outside lane when the man stopped. When the plaintiff stopped, he swung into the inside lane, and his car slowed down to some extent. Q. All right, sir. Now, where was the car at the time of the accident? A. You mean in relation to this? Q. Yes. A. At the time of the accident the car - two wheels were across the center line. He was swinging across, veering across."

Marvin Creech, called by respondent, testified that he was not acquainted with any of the parties to the action; that, at the time of the accident, he was sitting in a car from which he had a view of the highway; that it was raining; that his attention was called to respondent's car when respondent sounded the horn the second time while proceeding along the outside lane; that the witness saw the car strike appellant, prior to which time the car was moving at "about 15 to 19 miles per hour"; and that the automobile stopped almost immediately. On cross-examination, the witness testified that the accident occurred in the middle of the highway.

John R. Olseene, called by respondent, testified that he was a member of the Washington state patrol, part of his duty being to investigate accidents; that he reached the scene of the accident approximately ten minutes after it occurred; that the pavement was very wet; that appellant had been moved to the office of a motor company, just south of the highway, and that, when he was being placed upon a stretcher, the witness noticed "quite a strong odor of alcohol." Later, the witness asked appellant if he had been drinking, appellant answering that he had had two or three drinks. The witness examined respondent's car and tested the brakes, testifying that "he had plenty of pressure in the brakes."

On cross-examination, appellant testified that, before leaving his home, he "had two drinks," but denied that he drank any more liquor.

Appellant's sole contention on this appeal is that the court erred in refusing to give his requested instruction concerning the first phase of the doctrine of last clear chance.

Nov. 1950] SARCHETT v. FIDLER. 369

In the case at bar, it appears that appellant's negligence had not ceased, but was continuing up to the moment of the collision. Appellant offered no evidence concerning the facts immediately preceding the collision, testifying that he remembered nothing save that he started across the pavement toward the real-estate office. The record contains testimony by wholly disinterested witnesses, corroborating respondent's testimony that appellant was proceeding across the wet highway at a considerable angle toward the east, with his back toward approaching traffic from the west; that respondent sounded the horn, and that appellant stopped and then proceeded on his way.

The question, then, is whether the first phase of the doctrine of last clear chance is applicable to the situation presented by the evidence, and whether the trial court committed reversible error in refusing to give the jury an instruction upon that doctrine.

There can be no question concerning appellant's negligence. He was crossing a main highway, not at an intersection or a marked crossing, and was moving at a decided angle, which prevented his having a view to the west, from which direction motor traffic along the south lane would be approaching. He was undoubtedly in a perilous situation in following this course.

[2] In the case of Mosso v. E. H. Stanton Co., 75 Wash. 220, 134 Pac. 941, L. R. A. (N. S.) 1916A, 943, an opinion by Ellis, J., the doctrine of last clear chance is discussed. In defining the first phase of the doctrine, the court said:

"The courts are wide of an agreement as to the extent of the last chance doctrine as applied to the operation of trains, street cars, automobiles and the like. But what we conceive to be the sounder view is this: assuming that a traveler has negligently placed himself in a dangerous situation upon the highway, then, as we have seen, whenever the person in control of such agency actually sees the traveler's situation and should appreciate his danger, the last chance rule applies, without regard to the continuing negligence of the traveler concurring with that of the operator up to the very instant of the injury."

370 SARCHETT v. FIDLER. [37 Wn. (2d)

In Hartley v. Lasater, 96 Wash. 407, 165 Pac. 106, an opinion by Chadwick, J., it is said:

"Last clear chance implies thought, appreciation, mental direction, and the lapse of sufficient time to effectually act upon the impulse to save another from injury, or the proof of circumstances which will put the one charged to implied notice of the situation."

The court then observed that persons driving upon highways are in the exercise of lawful and equal rights, and that the law places upon them no greater burden than that of taking ordinary care not to injure another. The court also stated that the doctrine of last clear chance is not applicable, unless the person sought to be charged with responsibility for an accident has knowledge of a dangerous situation, "sufficiently prior in time to have given him, in the exercise of ordinary care, time to avoid the accident."

In the case of Steen v. Hedstrom, 189 Wash. 75, 63 P. (2d)507, it appeared that the plaintiff was walking in an easterly direction on the right-hand side of a highway (in violation of the law) near Redmond. It was broad daylight and there was a clear view for several hundred feet to the west. The defendant was driving his automobile in an easterly direction, at a lawful speed, and first noticed plaintiff when the latter was about two hundred feet in front of him. There was no other traffic and the plaintiff was unaware of the approach of the automobile. The defendant swerved toward the center of the road until he was from ten to twenty-five feet from the plaintiff, and sounded the horn at the same time that plaintiff turned to his left across the road. The defendant applied the brakes and swerved to his extreme left, but struck the plaintiff, injuring him. As in the case at bar, the opinion states that "The plaintiff did not, seemingly, remember anything other than he was struck by the defendant's automobile."

The jury returned a verdict in favor of the defendant. The trial court granted plaintiff's motion for a new trial and, from that order, the defendant appealed. The opinion states:

Nov. 1950] SARCHETT v. FIDLER. 371

"Unless there was sufficient evidence to submit to the jury the question of last clear chance, the judgment must be reversed."

It is also noted that the plaintiff's

". . . negligence never terminated nor culminated in a situation of peril from which he could not by the exercise of reasonable care extricate himself. His negligence continued up to the instant of the injury."

We held that the defendant had the right to assume that the plaintiff "would exercise reasonable care for the safety of his person and take the two or three steps necessary to place him off the highway where he would be safe." The opinion uses the identical language above quoted from Hartley v. Lasater, supra, although that case is not cited. This court held that the doctrine of last clear chance was not applicable to the facts,. and reversed the order appealed from, with instructions to enter judgment upon the verdict.

In Everest v. Riecken, 30 Wn. (2d) 683, 193 P. (2d) 353, we said:

"We are concerned not with a last possible chance but with a last clear chance; and a clear chance to avoid a collision involves the element of sufficient time to appreciate the peril of the party unable to extricate himself and to take the necessary steps to avoid injuring him."

In Shultes v. Halpin, 33 Wn. (2d) 294, 205 P. (2d) 1201, it is said:

"The facts in this case show that, after respondent began his left-hand turn at the center of the intersection, only a second or two elapsed before the impact occurred. The interval of time thus afforded the appellant driver was wholly insufficient to avoid the collision. This doctrine to which we are now referring contemplates a last clear chance, not a last possible chance."

Others of our decisions are to the same effect.

Respondent's testimony that he sounded the horn; that appellant stopped; that respondent slowed his car and turned into the inside lane, is not only uncontradicted but is corroborated by the evidence of disinterested witnesses. Respondent was justified in assuming that, when he sounded

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the horn and saw appellant stop, appellant was aware of his presence upon the highway. Respondent took appropriate steps to avoid striking appellant.

[3] In Burlie v. Stephens, 113 Wash. 182, 193 Pac. 684, we said, concerning the doctrine of last clear chance:

"This doctrine can never arise where the party charged is required to act instantaneously. It presupposes contributory negligence, and where that negligence creates instantaneously a dangerous situation, without an appreciable lapse of time in which to avoid it, there is no room for its application."

We have also held that the doctrine does not apply to a last possible chance, but only to a last clear chance.

The doctrine of last clear chance is a modification of the former strict law that contributory negligence, on the part of one seeking damages on account of injuries received from another, barred the plaintiff's recovery. The doctrine was grafted upon the law for the benefit of the injured persons and, in certain cases, permits recovery of compensatory damages.

[4] The application of the doctrine of last clear chance to a state of facts disclosed by evidence introduced at a trial before a court, sitting with a jury, is a question of law to be determined by the court. Hartley v. Lasater, supra; Shultes v. Halpin, supra.

This court has many times approved the doctrine, and it is to be followed when appropriate.

[5] The trial court did not err in refusing to give to the jury the instruction requested by appellant, and the judgment appealed from is affirmed.

SIMPSON, C. J., ROBINSON, MALLERY, and HAMLEY, JJ., concur.

HILL, J. (concurring) - I concur in the affirmance of the judgment.

When the motorist first saw the pedestrian moving across the highway in the outside lane, the pedestrian was in a position of peril, but he apparently extricated himself from that position by stopping. Had he been hit before he stopped