Rasmussen

I dissent. While I believe that the able and logical opinion written by Mr. Presiding Justice Barnard and concurred in by Mr. Justice Jennings correctly states the law applicable to the facts of the instant case as that law was announced a number of years ago and as I still believe it should exist, I cannot agree with my associates that the opinion is in accord with the present conception of the law of negligence, contributory negligence and the doctrine of the last clear chance as applied by the courts in the more recent cases. I agree with my associates that our prior decision ( 138 Cal.App. 540 [ 32 P. 1091 ]) has not established the law of the case on this appeal. The doctrine of the last clear chance is not of recent origin. ( Butterfield v. Forrester, 11 East, 60 [103 English Reprint, 926]; Davies v. Mann, 10 Mees. W. 545 [152 English Reprint, 588].) It is a humanitarian doctrine adopted so as not to defeat a claim for damages by a plaintiff who was guilty *Page 370 of negligence in the first instance in placing himself in a position of danger from which he could not extricate himself by the use of ordinary care and was injured by a defendant who saw him in his position of…

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 358 The plaintiff was injured in a collision between an automobile driven by him and a street car owned by the defendant company and operated by the defendant Zoerb. The accident occurred in the country near the city of Fresno at a point where West Avenue crosses a private right of way maintained by the Traction Company, upon which there are double tracks. The collision happened about noon while the plaintiff was driving south on West Avenue and the street car was proceeding east on the southerly of the two tracks. The country was open and either vehicle could be seen from the other for a distance of many hundred feet. On a former appeal ( Rasmussen v. Fresno Traction Co., 138 Cal.App. 540 [ 32 P.2d 1091 ]) a judgment for $2,000 in favor of the plaintiff was reversed. On a retrial a jury awarded the plaintiff $15,000, and from the judgment which followed the defendants have appealed. The main ground for reversal urged by the appellants is that the doctrine of last clear chance is not applicable under the facts shown, and that the court erred in…

The plaintiff was injured in a collision between an automobile driven by him and a street car owned by the defendant company and operated by the defendant Zoerb. The accident occurred in the country near the city of Fresno at a point where West Avenue crosses a private right of way maintained by the Traction Company, upon which there are double tracks. The collision happened about noon while the plaintiff was driving south on West Avenue and the street car was proceeding east on the southerly of the two tracks. The country was open and either vehicle could be seen from the other for a distance of many hundred feet. On a former appeal (Rasmussen v. Fresno Traction Co., 138 Cal. App. 540 [ 32 Pac. (2d) 1091 ]) a judgment for $2,000 in favor of the plaintiff was reversed. On a retrial a jury awarded the plaintiff $15,000, and from the judgment which followed the defendants have appealed.

The main ground for reversal urged by the appellants is that the doctrine of last clear chance is not applicable under the facts shown, and that the court erred in submitting that issue to the jury. While the respondent concedes that he was guilty of contributory negligence as a matter of law he…