Concurring and Dissenting.
I concur in the judgment of reversal, but my conclusions with respect to the two controlling questions of law are directly opposite to those of the majority.
Upon the Evidence in This Record, the Jury Could Reasonably Have Found the Existence op Every Element Essential to the Application op the Doctrine op Last Clear Chance.
Having in mind the well-established rule that in determining the applicability of the doctrine of last clear chance the court must view the evidence in the light “most favorable to the *101contention that the doctrine is applicable,” (Selinsky v. Olson, 38 Cal.2d 102, 103 [237 P.2d 645]; Daniels v. City & County of San Francisco, 40 Cal.2d 614, 617 [255 P.2d 785].)
I conclude from my survey of the record that appellants are clearly right in their contention that the jury should have been instructed on that doctrine.1
Preliminarily, I would point out what appear to me to be basic and demonstrable fallacies in the reasoning of the majority opinion, and in the method of evaluation which it applies to the evidence.
In the first place, the majority begin their process of determining the presence or absence of the elements essential to the application of the doctrine by placing the testimonies of the several witnesses in separate compartments, and by analyzing the contents of each compartment separately. However, the jury was entitled to utilize a very different process, namely, that of accepting such parts of the several testimonies as they found credible, and if the sum of the accepted parts included all the elements essential to the application of the doctrine, they had both the right and the duty to apply it in accordance with appropriate instructions. The majority opinion recognizes that the latter process of evaluation is the proper one, but conspicuously fails, it seems to me, to give it anything approaching adequate employment in this case.
In the second place, in analyzing the testimony, the majority find missing therefrom any reasonable basis for the essential finding that plaintiffs by their own negligence had gotten into a position of peril from which they were unable to escape by the use of ordinary care. On this point, the majority have the following to say concerning plaintiffs’ version of the facts: “This version affords no basis for a last clear chance instruction for it raises no inference of negligence on the part of either plaintiff. The court’s instruction concerning Municipal Code, section 80.39 erroneously supplied this element; that presumption having been removed by our ruling that the ordinance is invalid, we look in vain for negligence on the part of plaintiffs. ’ ’
I shall assume for the purposes of this discussion that the majority are right in their holding that municipal code, section 80.39 is void and, therefore, that plaintiffs’ diagonal *102crossing of the street could not be considered negligent as a matter of law. But surely it does not follow that the jury could not have found that such conduct, under the circumstances appearing, was negligent as a matter of fact. In enacting section 80.39 of the municipal code (albeit a void ordinance because of its supposed invasion of a field fully preempted by the state) the Los Angeles City Council clearly expressed its view that a diagonal crossing of streets by pedestrians outside marked crosswalks was such a dangerous procedure (at any time of day) that it ought to be prohibited. Thus, the intent was to render such conduct unlawful, and, therefore, negligent as a matter of law. Apart from the question of validity, I think no one would contend that the council’s view was unreasonable. But casting aside the ordinance as void, would anyone assert that a jury could not reasonably find the same conduct to be negligent as a matter of fact, especially in the dark of night and under all the circumstances appearing in the instant case ?
A third fallacy in the majority opinion is that it defines the zone of danger too narrowly in holding that “ [T]hey [plaintiffs] never arrived at a place of danger until they were in the eastbound lane and in defendant’s line of travel.” This idea proceeds on the mistaken assumption that the line of travel of defendant’s vehicle was fixed and predetermined like that of a streetcar following the course of its rails. There were various lines of travel that the defendant might have selected during the time he travelled the distance of 40 to 75 feet (as he testified) after he saw plaintiffs start to run across the street and before he struck them.
The jury could well have believed quite realistically that plaintiffs were in peril from the instant they had committed themselves to their decision to cross ahead of defendant’s vehicle, at whatever point in the street they made that decision. And, in view of the conflicts in the testimony of the several witnesses, the jury might have placed that point almost anywhere in the northerly half of the street.
In the fourth place, the majority err in holding that the only basis for finding that plaintiffs were in a position of helpless peril due to their own negligence was the testimony to the effect that they crossed by a diagonal path. I submit, on the contrary, that the jury might reasonably have found: (a) that plaintiffs were negligent in attempting under the circumstances to cross ahead of defendant’s car at any angle; (b) that their negligence continued to operate as a circumstantial *103factor (as distinguished from a proximate cause) whether defendant did or did not signal them an invitation to cross ahead of him; and (e) that plaintiffs became wholly unable to escape at a time when defendant, being well aware of their helpless peril, yet had ample time either to slow down, stop, or so change his direction of travel as to avoid hitting them.
It is, of course, well understood that the purpose of the last clear chance doctrine is “to relieve the injured party from the rigid application of the rule that contributory negligence will bar his recovery, when the circumstances are such that it may be said that such party’s negligence is a remote rather than a proximate cause of his injuries. ’ ’ (Sparks v. Redinger, 44 Cal.2d 121, 124 [279 P.2d 971]; Girdner v. Union Oil Co., 216 Cal. 197, 201-204 [13 P.2d 915].) And I agree that in this case plaintiffs’ continuing and contributory negligence would bar their recovery unless the elements of the doctrine of last clear chance were found to be present so as to render plaintiffs’ negligence “remote in causation.” (Center v. Yellow Cab Co., 216 Cal. 205, 207-208 [13 P.2d 918].) The majority opinion does not discuss the pedestrian cases primarily relied upon by appellants—cases sufficiently similar in their factual situations to constitute persuasive precedents: Cole v. Ridings, 95 Cal.App.2d 136 [212 P.2d 597] and Lebkicher v. Crosby, 123 Cal.App.2d 631 [267 P.2d 361]. I think the majority decision is not consistent with those last cited.
Applying the formula as restated in Brandelius v. City & County of San Francisco, 47 Cal.2d 729, at page 743 [306 P.2d 432], and viewing the evidence in a light favorable to the application of the doctrine, I submit that the jury would have been entitled to find the facts, ultimate and evidentiary, as suggested in the following summary:
(1) Plaintiffs were in a position of danger, and, by their own negligence, became unable to escape from such position by the use of ordinary care, either (a) because it became physically impossible for them to escape, or (b) because they were totally unaware of the danger.
That plaintiffs got into a position of danger is too obvious to argue, whether the danger zone was as narrow as the majority defines it, or much wider as I think the jury might have viewed it. And they got into it negligently for any of several factual reasons that the jury might have found, including (a) proceeding in a southeasterly direction with their backs toward the approaching car, they took a longer diagonal course when *104a shorter direct course might have enabled them to get safely across ahead of defendant’s car; or (b) they were negligent in attempting, under the circumstances, to run across the street ahead of defendant’s ear at any angle and regardless of whether defendant did or did not signal them to proceed.
Thus, by their own negligence, plaintiffs got into this position of danger, and by their own negligence became unable to escape from it (a) because after they negligently got into defendant’s line of travel, it was physically impossible for them to move fast enough in either direction to escape, particularly in view of the much greater, and rapidly increasing, rate of speed at which defendant’s car was advancing upon them, or, in the alternative, (b) because they were totally unaware of the danger from and after the time when they saw defendant’s signal which they interpreted as a yielding of the right of way, or (if no such signal was given) from the time they observed defendant slowing down so perceptibly that they assumed he was in the process of stopping to yield the right-of-way which plaintiffs were negligently violating.
(2) Defendant knew that plaintiffs were in a position of danger, and further knew, or in the exercise of ordinary care should have known, that plaintiffs were unable to escape therefrom.
According to his own testimony, defendant was aware of plaintiffs’ position of peril when he was still at a distance from them which he thought might have been as great as seventy-five feet. The following is a part of his testimony: “I applied my brakes when I first saw them start across, forty to sixty-five, seventy-five feet from the point of impact. . . . Well, there’s a certain amount of reaction time. In that time, from the point of impact I decided that they were running across and I should apply my brakes. So at that time I did.”
That defendant knew, or should have known, that plaintiffs were unable to escape could be inferred from any of several permissible assumptions of fact, all supported by substantial evidence: (a) that defendant signalled to plaintiffs to proceed and by this means made it a practical certainty that they would cross the path of his vehicle without further attention to it in the belief that he was stopping to yield the right of way; or (b) that when defendant saw plaintiffs start to run across his line of travel with their backs partially turned (when he was as far as seventy-five feet away) he knew, or should have known from their behavior that they were unaware of their peril, or even if they were aware of their *105peril, that it was too late for them to escape by any means then available to them because of the speed at which he was travelling.
(3) After defendant saw plaintiffs in their position of peril, and after he had knowledge of their inability to escape, he had the last clear chance to avoid the accident by the exercise of ordinary care, but failed to exercise such last clear chance, and the accident occurred as a proximate result of such failure.
Defendant’s testimony that he undertook to apply his brakes when he was at a distance from the point of impact, which he estimated as being possibly 75 feet (between 40 and 75), would support a finding that he was aware of plaintiffs’position of danger when he was still far enough from them to enable him in the exercise of ordinary care to slow down, stop, or avoid plaintiffs by a suitable change of direction. Especially significant at this point is the following testimony of plaintiff Holman concerning her conversation with defendant, when defendant went to visit her in the hospital: “I said, ‘How come you hit us after we stopped ? ’ And his words to me were: ‘I thought I could get by you and so I stepped on the gas.’ ”
If the jury believed that defendant signalled plaintiffs to proceed, thus indicating his intention to yield the right-of-way. it would follow that defendant necessarily knew, or should have known, that plaintiffs from that point would be unaware of any further threat of danger from his vehicle.
But if the jury believed that no such signal was given by defendant, there was the testimony of the witness Wilkerson to the effect that defendant, after bringing his car almost to a complete stop, suddenly accelerated to about 25 miles per hour. This testimony alone, with the inferences that might legitimately be drawn from it, would supply all the requirements of the third subdivision of the Brandelius formula. In short, defendant’s last clear chance consisted of his ample opportunity to slow down, stop, or alter his course after he had actual knowledge of plaintiffs’ position of helpless peril. But instead of continuing slowly, or stopping, he appeared suddenly to change his mind and accelerated his speed to such an extent that it became impossible for plaintiffs to escape.
It is not unlikely that other combinations of factual findings supportable by the evidence could be suggested under which the proper application of the doctrine of last clear chance would be even more clear.
*106Section 80.39 of the Los Angeles Municipal Code Is a Valid Ordinance and the Jury Was Properly Instructed That Its Violation Would Constitute Negligence.
I regard the question of the validity of the ordinance here under consideration as a close and debatable one. The question is important enough to deserve the most careful consideration. Obviously, it is a matter of great importance to local authorities to know, exactly how far local ordinances regulating pedestrian traffic can be validly enacted and enforced.
The appalling number of pedestrians killed and maimed every year in the process of crossing our California streets and highways testifies eloquently to the need for regulations rea- - sonably designed to promote safety. It is for this reason that I am quite hesitant to strike down as invalid the very sensible ordinance here under consideration. Moreover, I think the doctrine of preemption ought not to be pushed any further than necessary in this area in which the preservation of local power to accommodate traffic regulations to the peculiar requirements of local conditions is highly desirable.
The rules enunciated in Pipoly v. Benson, 20 Cal.2d 366 [125 P.2d 482, 147 A.L.R. 515], as I read them, provide ample support for the conclusion that the validity of the ordinance here in question should be sustained. The controlling question is posed by the following language, found at page 371 of the Pipoly decision:
“The difficult question in such cases is whether the state law was intended to occupy the entire field. Where the statute contains language indicating that the Legislature did not intend its regulations to be exclusive, the general rule permitting additional supplementary local regulations has been applied.” (Emphasis added.)
The Pipoly decision struck down municipal code section 80.38 on the basis of a conclusion that the Legislature had intended the provisions of the Vehicle Code relating to pedestrian traffic to be exclusive—had intended, in other words, to occupy the entire field.
At the very next session of the Legislature, the lawmakers enacted section 459.1 of the Vehicle Code, expressly authorizing local ordinances “prohibiting pedestrians from crossing roadways at other than crosswalks.” Manifestly, this legislation was intended to validate the very type of ordinance which Pipoly had nullified. But beyond that, the lawmakers thereby in effect said this: If it formerly was our intent to *107occupy the entire field of pedestrian traffic regulation, we hereby declare that such no longer is our intent. If the Vehicle Code provisions relating to pedestrian traffic were formerly regarded as exclusive, we hereby declare that they should no longer be so regarded. Thus, the Legislature swept away the basis for the exception to the well-settled general rule, which the Pipoly decision recognizes in the following language, at page 370:
“The applicable rule in these situations where state control is dominant has been stated as follows: ‘Where the legislature has assumed to regulate a given course of conduct by prohibitory enactments, a municipality with subordinate power to act in the matter may make such new and additional regulations in aid and furtherance of the purpose of the general law as may seem fit and appropriate to the necessities of the particular locality and which are not in themselves unreasonable. ’ (Mann v. Scott, supra, p. 556 [180 Cal. 550 (182 P. 281)].) The eases in this state have consistently upheld local regulations in the form of additional reasonable requirements not in conflict with the provisions of the general law. (Mann v. Scott, supra; In re Hoffman, 155 Cal. 114 [99 P. 517, 132 Am.St.Rep. 75]; In re Iverson, 199 Cal. 582 [250 P. 681]; In re Simmons, 199 Cal. 590 [250 P. 684]; Grant, ‘Municipal Ordinances Supplementing Criminal Laws,’ [1936] 9 So. Cal. L. Rev. 95, 98.)”
It seems to me that the instant ordinance is so clearly consistent with all relevant general laws that to nullify it would be to disregard and violate section 11 of article XI of the Constitution of the State of California which provides:
“Any county, city, town, or township may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws.”
The grant of municipal power contained in section 11 of article XI of our state Constitution “is very broad and liberal.” (In re Holmes, 187 Cal. 640, 645 [203 P. 398].) It has been held in numerous cases that the only limitation upon this constitutional grant of power is that its exercise may not conflict with general laws. (Ex parte Lacey, 108 Cal. 326, 328 [41 P. 411, 41 Am.St.Rep. 93, 38 L.R.A. 640]; Odd Fellows’ Cemetery Assn. v. City & County of San Francisco, 140 Cal. 226, 230 [73 P. 987] ; In re Hoffman, 155 Cal. 114 [99 P. 517, 132 Am.St.Rep. 75]; In re Iverson, 199 Cal. 582 [250 P. 681]; In re Sic, 73 Cal. 142 [14 P. 405]; In re Hong Shen, 98 Cal. 681 [33 P. 799]; Pasadena School District v. *108City of Pasadena, 166 Cal. 7, 9 [134 P. 985, Ann.Cas. 1915B 1039, 47 L.R.A.N.S. 892] ; In re Montgomery, 163 Cal. 457, 460 [125 P. 1070, Ann.Cas. 1914A 130].)
I think the general effect of all the California decisions on the subject is quite accurately summarized in the following, from 35 California Jurisprudence 2d, pages 56-57, Municipal Corporations, section 234:
“Whether the legislature intended to undertake exclusive occupancy of a given field of legislation is determined, not by the language of the statute alone, but by consideration of the facts and circumstances on which the statute was intended to operate. The courts have shown little disposition to hold that action by the legislature in a given field, however extensive, precludes different action in the same field, even of a similar character, by cities. It seems that the only eases that hold that state regulation occupies a field so as to preclude ordinances that do not directly conflict with them are those where the legislature has expressly provided that there shall be no local regulation on the subject. But, as has been seen, a mere prohibition by the legislature of local regulation on a particular subject without any affirmative act on its part to occupy that field is ineffective. Of course, provisions of state laws declaring that local regulations in the field shall be permitted, though not of themselves authorizing ordinances that actually conflict with state laws, are indicative of the legislative intention not to occupy the field, thus justifying local regulation in it.” (Emphasis added.)
I conclude that.the intended effect of Vehicle Code section 459.1 is to authorize consistent local regulations relating to the conduct of pedestrians in crossing roadways outside crosswalks. The greater power to prohibit given conduct, which is expressly conferred by the statute, should be deemed to include the lesser consistent power to regulate or to place limitations or qualifications upon the legality of the same conduct. This is but an application of the legal maxim that “the greater contains the less.” (Civ. Code, § 3536.)
Like the presumption in favor of the constitutionality of legislation, there is a well recognized presumption in favor of the validity of a municipal ordinance. (See generally, 35 Cal.Jur.2d 223, § 417; 18 Cal.Jur. 933, § 218.) As stated by this court, “An ordinance must be clearly obnoxious as unreasonable and oppressive to justify nullifying it by judicial decree. Since it is the right of a city to regulate its municipal, affairs the courts must uphold such regulations unless it is *109manifest that the ordinance transcends the power of the municipality. ...” (City of Los Angeles v. Tannahill, 105 Cal.App.2d 541, 546 [233 P.2d 671].)
The obvious conclusion from the foregoing is that I would reverse the judgment, not upon the ground stated in the majority opinion, but because of the trial court’s error in refusing to instruct upon the doctrine of last clear chance.
Compare Hensley v. Sellers, 160 Cal.App,2d 117 [324 P.2d 954], (decided May 5, 1958) wherein refusal to instruct on the doctrine of last clear chance was held reversible error in a ease presenting a factual situation less favorable to its application.