The opinion
SCHAUER, J., Dissenting.
I would affirm the judgment. As in Daniels v. City & County of San Francisco, ante, p. 614 [ 255 P.2d 785 ], the doctrine of “last clear chance” as applied here in effect substitutes the word “possible” for ‘ ‘ clear. ’ ’ The evidence tends to show clearly that the plaintiff was negligent and that the plaintiff may have had a last clear chance to escape after he had driven upon the southbound track, but it fails to show that the motorman of a vehicle of the size and weight of the streetcar, confined to its tracks on its right of way, had such an opportunity to avoid the collision as would make it reasonable to conclude that he had a clear chance.
The argument advanced in the majority opinion as an answer to defendants’ contention in respect to the continuing negligence of plaintiff and the nonapplieability of the doctrine of last clear chance not only fails to constitute an adequate answer but tends affirmatively to support defendants’ contention. The majority say (p. 636, supra) : “Defendants cite plaintiff’s testimony that the streetcar was four blocks away as he stopped on the track and remained there 25 to 30 seconds prior to the collision, that the motor of his automobile was running as it stood in second gear, and that a reasonable means of escape was then open to him by simply backing off the track. However, plaintiff was clearly only hazarding a guess as to the duration of his stop, and other testimony indicated a considerably shorter time interval. It was for the *641 jury to determine the weight to be accorded to the testimony of the various witnesses and to reconcile, if possible, any inconsistencies in the time, speed and distance estimates in their factual accounts.”
The proposition that plaintiff stopped on the car tracks while the streetcar was four blocks away and remained there, after having seen the car approaching, for 25 or 30 seconds prior to the collision, is quite different from the alternative proposition suggested in the second quoted sentence, to the effect that plaintiff was “only hazarding a guess” and that “other testimony indicated a considerably shorter time interval.” If the facts are as first suggested then it would seem that plaintiff had a clear and abundant opportunity to remove himself from his position of peril and that it was his own negligence which continued him (while he was neither helpless nor unaware) in that position. The answer advanced by the majority in an attempt to escape such conclusion—the possibility of a factual determination that there was “a considerably shorter time interval”-—answers too much. If such time interval was short enough to excuse the plaintiff from not having extricated himself from his position of peril, then it inevitably exculpates defendants from liability under the last clear chance doctrine because certainly plaintiff’s automobile could have been removed from its position much more expeditiously than defendants’ far heavier, moving, track-bound vehicle could have been stopped.
The decision in this case, together with the holdings in Daniels v. City & County of San Francisco, ante, p. 614 [ 255 P.2d 785 ], and in Peterson v. Burkhalter (1951), 38 Cal.2d 107 [ 237 P.2d 977 ], demonstrate that the transition of the doctrine from “clear” to “possible” chance application is an accomplished fact, but possibly not yet a dependable one. (See Rodabaugh v. Tekus (1952), 39 Cal.2d 290, 297 [ 246 P.2d 663 ].) The character of the transition and the uncertainty of its application serve to emphasize the need for legislative or constitutional study and amendment, rather than mere judicial extension, of the concepts and vehicles of the law. But until the law has been amended by orthodox processes and we no longer have to call the basic principle the doctrine of last clear chance I think that we should refrain from applying it to' facts which on any reasonable view of the evidence give the party charged no more than a slight or possible chance.