Holman

Appeals from judgments for defendant in two companion personal injury actions. The cases were tried together before a jury and plaintiffs base their appeals upon alleged errors in instructions. Counsel claim error (1) in instructing the jury that violation of section 80.39 of Los Angeles Municipal Code would constitute negligence per se, and (2) in refusing to give an instruction on the last clear chance doctrine. We have concluded that there was reversible error in the instruction based upon the municipal ordinance, but no error in refusal of a last clear chance instruction.

The accident occurred while plaintiffs were crossing Ninth Street in the city of Los Angeles near the middle of the block between Alvarado Street and Westlake Avenue, on November 13, 1955. They were not within any crosswalk. One of the plaintiffs and another witness testified that appellants were crossing the street diagonally. The court instructed the jury concerning the State law as follows: "You are instructed that Section 562(a) and (b) of the Vehicle Code of the State of California on the date of the accident provided as follows: 'Every pedestrian crossing a roadway at any point other than…

Appeals from judgments for defendant in two companion personal injury actions. The cases were tried together before a jury and plaintiffs base their appeals upon alleged errors in instructions. Counsel claim error (1) in instructing the jury that violation of section 80.39 of Los Angeles Municipal Code would constitute negligence per se, and (2) in refusing to give an instruction on the last clear chance doctrine. We have concluded that there was reversible error in the instruction based upon the municipal ordinance, but no error in refusal of a last clear chance instruction.

The accident occurred while plaintiffs were crossing Ninth Street in the city of Los Angeles near the middle of the block between Alvarado Street and Westlake Avenue, on November 13, 1955. They were not within any crosswalk. One of the plaintiffs and another witness testified that appellants were crossing the street diagonally. The court instructed the jury concerning the State law as follows: “You are instructed that Section 562(a) and (b) of the Vehicle Code of the State of *90 California on the date of the accident provided as follows: ‘Every pedestrian crossing a roadway at any point other than within a…

Concurring and Dissenting.

I concur in the judgment of reversal, but my conclusions with respect to the two controlling questions of law are directly opposite to those of the majority.

Upon the Evidence in This Record, the Jury Could Reasonably Have Found the Existence op Every Element Essential to the Application op the Doctrine op Last Clear Chance.

Having in mind the well-established rule that in determining the applicability of the doctrine of last clear chance the court must view the evidence in the light “most favorable to the *101 contention that the doctrine is applicable,” (Selinsky v. Olson, 38 Cal.2d 102, 103 [ 237 P.2d 645 ]; Daniels v. City & County of San Francisco, 40 Cal.2d 614, 617 [ 255 P.2d 785 ].)

I conclude from my survey of the record that appellants are clearly right in their contention that the jury should have been instructed on that doctrine. 1

Preliminarily, I would point out what appear to me to be basic and demonstrable fallacies in the reasoning of the majority opinion, and in the method of evaluation which it applies to the evidence.

In the first place, the majority begin their process of determining the presence or absence of the elements…