W. A. LEO, Appellant, v. RUFUS ALBERTSON DUNHAM, Respondent, 41 Cal. 2d 712

EDMONDS, J. A Ford tank truck operated by Rufus A. Dunham struck and seriously injured Willard A. Leo. Upon his appeal from the judgment in favor of Dunham, Leo charges that the instructions to the jury upon the doctrine of imminent peril were prejudically erroneous. The accident occurred when Leo walked across a highway running north and south. On each side of the highway, which had lanes 10 feet in width, there was a 6-foot improved shoulder but no curbs. As Leo started to cross from east to west, he looked to his right and observed Dunham’s truck approaching in the far lane and about 300 feet to the north.

Upon the assumption that he had time to cross the highway, Leo attempted to do so, and did not thereafter look in the direction of the approaching vehicle. In the meantime, Dunham saw Leo begin to walk across the highway, looking in the opposite direction. Nevertheless, Dunham continued his approach at about 35 miles per hour, but not until he had reached a point some 60 or 80 feet away did he conclude that a collision was imminent. He applied his brakes, “hollered,” and swerved to his right. Leo did not look around until the truck suddenly “showed up in front” of him.

In fact, there is evidence that he walked into the side of the truck. The point of impact is the subject of some uncertainty. Dunham testified that the collision occurred “six feet west of the westerly edge of the traveled portion of the highway.” Leo told the jury that he was in the left-hand lane of traffic at the time he was struck. The traffic officer who investigated the accident also placed Leo in that lane at the time of the collision. According to the officer, the point of impact was one foot east of the west line of the left lane.

The jury was given the usual instructions concerning negligence, contributory negligence and proximate cause. In addition, at the request of Dunham, the rule as to the doctrine of imminent peril was stated. The doctrine has been variously characterized as the “sudden peril rule” (De Ponce v. System Freight Service, 66 Cal.App.2d 295, 301 [152 P.2d 234]; Uhl v. Fertig, 56 Cal.App. 718, 724 [206 P. 467]), the “imminent peril doctrine” (Stickel v. Durfee, 88 Cal.App.2d 402, 407 [199 P.2d 16] ; Yates v. Morotti, 120 Cal.App. 710, 716 [8 P.2d 519]), and the “emergency doctrine” (Rest., Torts, vol.

II, Negligence [1934] § 296, p. 796 ; Prosser on Torts [1941] § 37, p. 242). However, under the cases and the authorities, a person who, without negligence on his part, is suddenly and unexpectedly confronted with peril, arising from either the actual presence, or the appearance, of imminent danger to himself or to others, is not expected nor required to use the same judgment and prudence that is required of him in the exercise of ordinary care in calmer and more deliberate moments. (Stickel v. Durfee, supra, pp. 407-408; Gamalia v. Badillo, 53 Cal.App.2d 375, 378 [128 P.2d 184] ; Graham v. Consolidated M. T.

Co., 112 Cal.App. 648, 652 [297 P. 617] ; Rest., Torts, supra, vol. II, Negligence [1934] § 296, p. 796; Prosser on Torts, supra, [1941] § 37, p. 242; and see Bosserman v. Olmstead, 77 Cal.App.2d 236, 240 [175 P.2d 49].) An instruction should be given only when it is applicable to the issues raised by the pleadings or it is pertinent to some issue or theory developed by the evidence. (Sills v. Los Angeles Transit Lines, 40 Cal.2d 630, 633 [255 P.2d 795] ; Garcia v. Conrad, 40 Cal.App.2d 167, 170 [104 P.2d 527] ; Arundel v.

Turk, 16 Cal.App.2d 293, 297 [60 P.2d 486].) The decisive factor here is the time when Dunham knew, or should have known, that an accident would occur unless preventive steps were taken. Dunham takes the position that the evidence reasonably supports the inference that he was suddenly and unexpectedly confronted with an emergency when, for the first time, he realized that Leo would not keep out of the line of the truck’s travel. As he presents the facts, it cannot be said, as a matter of law, that he had previously been guilty of any negligence.

Under such circumstances, he says, he is entitled to the benefit of the doctrine of imminent peril. Leo argues that there was nothing sudden or unexpected about his own conduct, and Dunham’s “sudden realization” was in fact nothing more than belated awareness of an error in judgment. Dunham’s responsibility, it is argued, is determined by his conduct viewed in its entirety from the moment he first sighted Leo and continuing until the collision. Based upon that premise, Leo asserts, any imminent peril was occasioned by Dunham’s negligence, and the doctrine is inapplicable.

Ordinarily, whether a person has been suddenly confronted with imminent peril is a question of fact to be submitted to the jury. (Kehlor v. Satterlee, 37 Cal.App.2d 116, 119 [98 P.2d 759] ; and see Be Ponce v. System Freight Service, supra, p. 301.) Although the evidence here justifies an inference of negligence on the part of Dunham, it also reasonably supports the jury’s implied finding that he was not negligent until the time he concluded that Leo was not going to look around again. (Cf. Varner v. Skov, 20 Cal.App.2d 232, 238 [67 P.2d 123].) Both parties saw each other when they were 300 feet apart.

Leo was crossing a roadway at a point not within a marked crosswalk nor within an unmarked crosswalk at an intersection. Dunham had the right of way. (Veh. Code, § 562[a].) “The general rule is that every person has a right to presume that every other person will perform his duty and obey the law, and in the absence of reasonable ground to think otherwise it is not negligence to assume that he is not exposed to danger which comes to him only from violation of law or duty by such other person.” (Harris v. Johnson, 174 Cal. 55, 58 [161 P. 1155, Ann.Cas. 1918E 560, L.B.A. 1917C 477] ; Dickinson v.

Pacific Greyhound Lines, 55 Cal.App.2d 824, 827 [131 P.2d 401] ; and see Folger v. Richfield Oil Corp., 80 Cal.App.2d 655, 665 [182 P.2d 337].) Moreover, a reasonably prudent person might well anticipate an existent danger from the approach of a truck only 300 feet away at the time he started to cross a street and would not thereafter ignore its presence. (Fischer v. Keen, 43 Cal.App.2d 244, 249 [110 P.2d 693].) Dunham, therefore, reasonably might have expected Leo to take further care for his own safety by again looking toward the approaching truck during the crossing.

For these reasons, it cannot be said, as a matter of law, that Dunham was negligent in failing to anticipate until the truck was some 60 to 80 feet from Leo that Leo was not going to yield the right of way. At that instant Dunham reasonably may be said to have been confronted unexpectedly with a sudden and imminent peril, and a deliberately calculated and cool choice was no longer possible. Accordingly, the record shows adequate basis for the instruction on imminent peril. The judgment is affirmed. Shenk, J., Traynor, J., Schauer, J., and Spence, J., concurred.