Girdner

Appeal from a judgment awarding plaintiff $5,000 for personal injuries and $500 damages to his' automobile, as the result of a collision between plaintiff’s automobile and an oil truck owned by defendant Union Oil Company, and driven by defendant Elam. The case was tried by the court sitting without a jury.

The sole question presented by the appeal is whether or not the facts in the case justify a recovery for plaintiff under the last clear chance doctrine. Appellant claims that the evidence is insufficient to support the findings and judgment. Primarily it may be stated that whether the doctrine is applicable in a given case depends entirely upon the existence or nonexistence of the elements necessary to bring it into operation, and this question is controlled by factual circumstances. Here there is evidence to show that the collision between the automobile driven by plaintiff and the truck belonging to defendant oil company and driven by defendant Elam, occurred at the intersection of Ferry Street and the California state highway, in the town of Anderson, in Shasta County, on the sixth day of January, 3927, between 2 and 3 o’clock in the afternoon. Ferry Street in the town of…