Barcelone

This is an action for wrongful death. Jury verdict was for defendants, and plaintiff appeals from the judgment entered thereon. The sole error urged is the court’s refusal of plaintiff’s requested instruction on the doctrine of last clear chance.

Respondents point out that the form of the instruction requested (BAJI 205) has been disapproved (Brandelius v. City & County of San Francisco, 47 Cal.2d 729 [ 306 P.2d 432 ]). They rely upon the rule that the trial court is not bound to give an offered instruction which is erroneous in form. However, the Brandelius decision was rendered 6 months after trial of this case. Until that decision, the form used by appellant had at least the tacit approval of the appel late courts. Appellant should not be deprived of the right to trial upon the issue of last clear chance because of the later determination that her offered instruction was erroneous (Parrott v. Furesz, 153 Cal.App.2d 26 [ 314 P.2d 47 ]). Thus the question before us is whether the evidence required a proper instruction upon this subject.

The doctrine of last clear chance is properly invoked only if the evidence warrants findings: “(1) that the plaintiff was in a position of…