Hamblin

This is an appeal by the defendant from a judgment against him for fifteen hundred dollars. The action was one to recover damages for personal injury alleged to have been caused by the negligent operation by defendant of his automobile in the city of Oakland, California. The only point urged upon the appeal is that the trial court erred in instructing the jury upon the doctrine of last clear chance. No contention is made that the instruction given on this subject was not a correct statement of law, but the appellant urges that the record does not disclose a state of facts to which this doctrine applies.

In supporting his position appellant argues that the evidence shows the plaintiff to have been guilty of contributory negligence and sets out portions of the testimony to sustain this contention. We may concede this without aiding him in the least in his attack upon the instruction of which complaint is made. The doctrine of last clear chance is not excluded by evidence of negligence upon the part of the persons injured; on the contrary, it is precisely in cases where the plaintiff has been negligent and has placed himself in a position of imminent danger that the humane doctrine…