Fambrini

This is an appeal by plaintiff, Mark B. Fambrini, by his guardian ad litem, Louis Fambrini, from a judgment by the Honorable Norman A. Gregg, Judge of the Superior Court of the County of Contra Costa against his negligence suit for personal injuries.

*238 The sole issue on appeal is the propriety of the court’s refusal to give the appellant’s offered instruction on last clear chance. The form of the instruction is not in issue, but rather the applicability of the doctrine under the facts of the case.

About 5 :20 p. m. on August 5, 1957, a clear day, the respondent was proceeding up Hadden Road in Walnut Creek, when she observed the plaintiff, Mark Fambrini, coasting toward her down the hill on his bicycle at a rapid rate of speed. She recognized the bicycle rider as Mark, a minor 7 years of age, and knew him to be an erratic bicyclist. The respondent was the only eyewitness to the accident, with the exception of Mark who did not recollect the events very clearly. She was going at a rate of from 15 to 20 miles per hour when she first observed him; at that time, the vehicles were about 90 feet apart. He was looking off to his right as he proceeded downhill, and never directed his…

I dissent.

The majority opinion appears to be predicated upon only a limited portion of respondent’s testimony and ignores or rejects admissions and other evidence, direct and inferential, that fixes the distance between véhicles at 160 to 180 feet rather than 90 feet and that contradicts her testimony of an immediate stop within 10 feet upon observing the plaintiff’s position of peril. The rejected evidence as to distance lies in respondent’s testimony that she first observed the boy and knew he was in danger as she went into the curve from Black-wood and that he was then at the McCleary driveway. Later she said he was just coming off the upper level portion of Hadden, which would be a considerably greater distance. The McCleary driveway was 75 to 80 feet above the point of impact *245 which in turn was 39 feet above a tangent projected by the traffic officer from the opposite side of the Blackwood curve. A tangent from the near side would add another 40 feet to Hadden. The descriptions of the course of the two roads and the photographic exhibits show that Blackwood and Hadden form a continuous curve and that forward visibility would be constant from any point on the first half…

This is an appeal by plaintiff, Mark B. Fambrini, by his guardian ad litem, Louis Fambrini, from a judgment by the Honorable Norman A. Gregg, Judge of the Superior Court of the County of Contra Costa against his negligence suit for personal injuries.

The sole issue on appeal is the propriety of the court's refusal to give the appellant's offered instruction on last clear chance. The form of the instruction is not in issue, but rather the applicability of the doctrine under the facts of the case.

About 5:20 p. m. on August 5, 1957, a clear day, the respondent was proceeding up Hadden Road in Walnut Creek, when she observed the plaintiff, Mark Fambrini, coasting toward her down the hill on his bicycle at a rapid rate of speed. She recognized the bicycle rider as Mark, a minor 7 years of age, and knew him to be an erratic bicyclist. The respondent was the only eyewitness to the accident, with the exception of Mark who did not recollect the events very clearly. She was going at a rate of from 15 to 20 miles per hour when she first observed him; at that time, the vehicles were about 90 feet apart. He was looking off to his right as he proceeded downhill, and never…