Philo

Defendant appeals from a judgment on a jury verdict awarding plaintiff damages for personal injuries suffered by Mm in an intersection automobile collision. The principal issue on this appeal is whether the court committed reversible error in giving an instruction on last clear chance.

Under settled rules the evidence will be viewed in the light most favorable to plaintiff.

The accident occurred about 4 p.m. on July 11, 1964, at the intersection of Oakwood and Live Oak Streets in the open desert area near Hesperia. Plaintiff, driving a 1963 Ford Econoline panel pick-up, was southbound on Oakwood and defendant, driving a 1961 Ford 1%-ton flat-bed truck laden with about 3 tons of rocks, was westbound on Live Oak. The intersection is in a 65 miles-per-hour zone and there were no traffic controls. There were no visual obstructions to the approaches to the intersection; the weather was dry and clear; and both roads were paved.

Plaintiff was travelling between 40-45 miles per hour. At some undetermined point north of the intersection he looked to the left and observed defendant’s truck some distance from the intersection. Plaintiff was unable to give an estimate of the distance but…