Yandell Truckaway, Inc. v. Western Pacific Railroad

The front end of defendant’s freight train collided with the right side of plaintiff’s truck and trailer, which were stopped on the railroad track. This occurred on a clear, dry weekday in August, about 4:30 p.m., at the Davis Street crossing, in the City of San Leandro.

Plaintiff sued for damages to the truck and defendant cross-complained for damages to the train. Trial by jury resulted in a verdict that neither party recover. Plaintiff appeals from the adverse portion of the judgment entered upon the verdict. Defendant has not appealed.

The only issue before us to determine is whether the trial court erred in refusing to instruct on last clear chance. The instruction proposed by plaintiff is admittedly correct as to form, it being drafted from BAJI 205 (rev.), which in turn is based upon Brandelius v. City & County of San Francisco, 47 Cal.2d 729 [ 306 P.2d 432 ].

The three elements necessary for the application of the doctrine are set forth in Brandelius, supra, at page 743: “ (1) that the plaintiff was in a position of danger and, by his own negligence, became unable to escape from such position by the use of ordinary care, either because it became physically impossible…