Bonebrake v. McCormick, 215 P.2d 728 (Cal. 1950). · Go Syfert
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Bonebrake v. McCormick, 215 P.2d 728 (Cal. 1950). Cases Citing This Book View Copy Cite
127 citation events (2 in the last 25 years) across 5 distinct courts.
Strongest positive: I-CA Enterprises, Inc. v. Palram Americas, Inc. (calctapp, 2015-02-18)
Treatment trajectory · 1950 → 2026 · click a year to view as-of
1950 1988 2026
Top citers, strongest first. 38 distinct citers. How cited ↗
cited Cited as authority (rule) I-CA Enterprises, Inc. v. Palram Americas, Inc.
Cal. Ct. App. · 2015 · confidence medium
(Bonebrake v. McCormick (1950) 35 Cal.2d 16, 18-19 [ 235 P.2d 728 ]; Sill Properties, Inc. v. CMAG, Inc. (1963) 219 Cal.App.2d 42, 54-55 [ 33 Cal.Rptr. 155 ]; Bank of Italy Nat’l Trust & Sav.
discussed Cited as authority (rule) Godfrey v. Steinpress
Cal. Ct. App. · 1982 · confidence medium
(Bonebrake v. McCormick (1950) 35 Cal.2d 16, 19 [ 215 P.2d 728 ]; Middlesex Insurance Co. v. Mann (1981) 124 Cal.App.3d 558, 567 [ 177 Cal.Rptr. 495 ].) Steinpress. cites no authority supporting his theory of contributory negligence as a defense to damages for infliction of emotional distress, or fraud by concealment.
discussed Cited as authority (rule) Middlesex Insurance v. Mann
Cal. Ct. App. · 1981 · confidence medium
(Bonebrake v. McCormick (1950) 35 Cal.2d 16, 19 [ 215 P.2d 728 ]; Fish v. Los Angeles Dodgers Baseball Club (1976) 56 Cal.App.3d 620, 634 [ 128 Cal.Rptr. 807 , 91 A.L.R.3d 1 ].) Middlesex asserts there was evidence that there were premiums received by Multiple in California and deposited in Multiple’s trust account in the 45 to 60 days preceding January 17, 1974, the date on which Mann ceased to be the sole signatory on the trust account, that were not paid over to Middlesex and contends that Mann was a fiduciary with respect to those premiums and had a fiduciary obligation to see that the p…
discussed Cited as authority (rule) Wechlo v. Winyard
Cal. Ct. App. · 1973 · confidence medium
Viewing the evidence in a light most favorable to plaintiff’s case (Bone-brake v. McCormick, 35 Cal.2d 16, 19 [ 215 P.2d 728 ]), we summarize the relevant facts: the accident occurred between 7:30 and 8 on the evening of August 9, 1971, when plaintiff, an elderly man (about 84 years of age), started across Anaheim in the middle of the block and approximately 250 feet from the nearest available crosswalk (at Banning and Anaheim) where there was a traffic control signal.
discussed Cited as authority (rule) Standard Oil Co. v. Intrepid, Inc.
Cal. Ct. App. · 1972 · confidence medium
It is axiomatic, of course, that in determining whether the evidence supports a requested instruction, the appellate court must view the evidence in favor of the party requesting the instruction (Menefee v. Williams (1968) 259 Cal.App.2d 56, 64 [66 *142 Cal.Rptr. 108]; see also Selinsky v. Olsen (1951) 38 Cal.2d 102, 103 [ 237 P.2d 645 ]; Bonebrake v. McCormick (1950) 35 Cal.2d 16, 19 [ 215 P.2d 728 ]).
cited Cited as authority (rule) Gaspard & Company, Inc., a Corporation v. Government of Guam
9th Cir. · 1970 · confidence medium
Bonebrake v. McCormick, 35 Cal.2d 16, at pp. 18-19 , 215 P.2d 728, 729 (1950).
discussed Cited as authority (rule) Casetta v. United States Rubber Co.
Cal. Ct. App. · 1968 · confidence medium
(Bonebrake v. McCormick (1950) 35 Cal.2d 16, 18-19 [ 215 P.2d 728 ]; Langensand v. Obert (1933) 129 Cal.App. 214, 218 [ 18 P.2d 725 ]; Gates v. Pendleton (1925) 71 Cal.App. 752, 759 [ 236 P. 365 ].) The lacuna in plaintiff’s proof is the absence of testimony to show that any of the defects, the existence of which is suggested by the testimony, was of a type which could have contributed to the explosion.
discussed Cited as authority (rule) Philo v. Lancia
Cal. Ct. App. · 1967 · confidence medium
(Bonebrake v. McCormick, 35 Cal.2d 16, 19 [ 215 P.2d 728 ]; Selinsky v. Olsen, 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 ].) If any one of the elements is absent, the doctrine does not apply and the ordinary rules of negligence and contributory negligence govern (Doran v. City & County of Sam Francisco, 44 Cal.2d 477, 486 [ 283 P.2d 1 ].) Defendant contends that the doctrine was inapplicable in the instant case because plaintiff’s negligence was “continuing, positive and contributing.” But as the court observed in S…
discussed Cited as authority (rule) Kaake v. Lott
Cal. Ct. App. · 1967 · confidence medium
(Godinez v. Soares, 216 Cal.App.2d 145, 152 [ 30 Cal.Rptr. 767 ].) However, since a party is entitled to an instruction conforming to any theory which finds substantial evidentiary support (Sills v. Los Angeles Transit Lines, 40 Cal.2d 630, 633 [ 255 P.2d 795 ]) which, for the purpose of this appeal must be viewed in the light most favorable to plaintiff (Bonebrake v. McCormick, 35 Cal.2d 16, 19 [ 215 P.2d 728 ]), the instruction was not erroneously given if the evidence, so viewed, warrants a reasonable inference that (1) plaintiff negligently placed himself in a position of danger, (2) defen…
discussed Cited as authority (rule) Frankenheimer v. Frankenheimer
Cal. Ct. App. · 1964 · confidence medium
An admission is evidence which tends to prove the truth of the matter admitted (Bonebrake v. McCormick, 35 Cal.2d 16, 19 [ 215 P.2d 728 ]) which the jury or court may believe as against other evidence.
discussed Cited as authority (rule) Fibreboard Paper Products Corp. v. East Bay Union of MacHinists, Local 1304
Cal. Ct. App. · 1964 · confidence medium
(Bonebrake v. McCormick, 35 Cal.2d 16, 18-19 [ 215 P.2d 728 ]; People v. Southack, 39 Cal.2d 578, 585 [ 248 P.2d 12 ].) Although defendants assert that all of the statements contained in Exhibit “Q” should have been admitted in their entirety as evidentiary admissions, the thrust of their argument, as disclosed by the briefs, is directed to the contention that the three appeal forms constitute admissions made in a pleading in a prior civil proceeding.
discussed Cited as authority (rule) Sill Properties, Inc. v. Cmag, Inc.
Cal. Ct. App. · 1963 · confidence medium
The act, declaration, or omission of a party, as evidence against such party; ...” (See also Bonebrake v. McCormick, 35 Cal.2d 16, 18 [215 P.2d *55 728]; Witkin, California Evidence, p. 246; 19 Cal.Jur.2d, Declarations or Admissions Against Interest, § 393, p. 128.) Appellant’s argument that the purpose of Corporations Code section 1112 is to protect the investing public and prevent inflationary or watered corporate stock transactions, does not render the evidence inadmissible.
discussed Cited as authority (rule) People v. Young
Cal. Ct. App. · 1963 · confidence medium
To the same effect, see People v. Carnine, 41 Cal.2d 384, 389-390 [ 260 P.2d 16 ]; Daniels v. City & County of San Francisco, 40 Cal.2d 614, 623 [ 255 P.2d 785 ]; Bonebrake v. McCormick, 35 Cal.2d 16, 19 [ 215 P.2d 728 ]; Selinsky v. Olsen, 38 Cal.2d 102, 103 [ 237 P.2d 645 ].
discussed Cited as authority (rule) Kramer v. Barnes
Cal. Ct. App. · 1963 · confidence medium
(Bone-brake v. McCormick, 35 Cal. 2d 16, 18-19 [ 215 P.2d 728 ] ; Lashley v. Koerber, 26 Cal.2d 83, 89 [ 156 P.2d 441 ]; Lewetzow v. Sapiro, 188 Cal.App.2d 841, 846-847 [ 11 Cal.Rptr. 126 ].) It was incumbent upon the affiant, however, to couch such evidentiary facts in testimonial language indicating that what he was testifying to were matters within his own knowledge and not such as were contained in a police report.
discussed Cited as authority (rule) Shuster v. Weeks
Cal. Ct. App. · 1962 · confidence medium
Whether the instruction should have been given turns on the evidence which, for this purpose, must be viewed in the light most favorable to plaintiff (Bonebrake v. McCormick, 35 Cal.2d 16, 19 [ 215 P.2d 728 ]).
cited Cited as authority (rule) People v. Jones
Cal. Ct. App. · 1962 · confidence medium
(Bonebrake v. McCormick, 35 Cal.2d 16, 18-19 [ 215 P.2d 728 ]; Code Civ.
discussed Cited as authority (rule) Feierbach v. Wynn
Cal. Ct. App. · 1962 · confidence medium
(Bonebrake v. McCormick, 35 Cal.2d 16, 18-19 [ 215 P.2d 728 ].) The facts presented in support of the plaintiff’s motion “would be sufficient to sustain judgment in his favor” (Coyne v. Kremples, supra, 36 Cal.2d 257, 261 ); being undenied, no triable issue exists; and the conclusion of the trial court in the premises was correct.
discussed Cited as authority (rule) Welker v. Scripps Clinic & Research Foundation
Cal. Ct. App. · 1961 · confidence medium
It is positive evidence, that is to say, it is evidence which tends to prove the truth of the matter admitted.” (Bonebrake v. McCormick, 35 Cal.2d 16, 18-19 [ 215 P.2d 728 ]; see also Card v. Boms, 210 Cal. 200, 204 [ 291 P. 190 ]; Hall v. Bark “Emily Banning,” 33 Cal. 522, 524 ; Camacho v. Escobedo, 152 Cal.App.2d 198, 199 [ 313 P.2d 28 ] ; W.
discussed Cited as authority (rule) Lovett v. Hitchcock
Cal. Ct. App. · 1961 · confidence medium
In determining whether the record warrants the instruction, we must view the evidence in the light most favorable to plaintiff, indulging all reasonable inferences in his favor (Bonebrake v. McCormick, 35 Cal.2d 16, 19 [ 215 P.2d 728 ]), In this light, the facts we have recited earlier support the giving of the instruction.
discussed Cited as authority (rule) Lewetzow v. Sapiro
Cal. Ct. App. · 1961 · confidence medium
This being the case, it cannot be said that the finding of nonaccess is unsupported by the evidence, or that the court should have found access as a matter of law.” (Pp. 83-84.) Appellant’s cases, holding that an admission or statement against interest “tends to prove the truth of the matter admitted” (Bonebrake v. McCormick (1950), 35 Cal.2d 16, 19 [ 215 P.2d 728 ]), do not proceed to the length appellant asks of us here: that despite contradictory evidence such a statement must be deemed conclusive.
discussed Cited as authority (rule) Di Sandro v. Griffith
Cal. Ct. App. · 1961 · confidence medium
(Warren v. Ubungen, 177 Cal.App.2d 605, 608 [ 2 Cal.Rptr. 411 ] ; Bonebrake v. McCormick, 35 Cal.2d 16, 19 [ 215 P.2d 728 ] ; Guyton v. City of Los Angeles, 174 Cal.App.2d 354, 361 [ 344 P.2d 354 ] ; Durkee v. Atchison, T. & S. F. Ry.
discussed Cited as authority (rule) Dyer v. Knue
Cal. Ct. App. · 1960 · confidence medium
(Guyton v. City of Los Angeles, 174 Cal.App.2d 354, 361 [ 344 P.2d 910 ] ; Bonebrake v. McCormick, 35 Cal.2d 16, 19 [ 215 P.2d 728 ].) There must be substantial evidence present to justify the question of last clear chance going to a jury, and the existence of substantial evidence justifying the application of the doctrine is a question of law.
discussed Cited as authority (rule) Kavner v. Holzmark
Cal. Ct. App. · 1960 · confidence medium
Appellant’s brief says: “This appeal is based solely upon the ground that the trial court failed and refused to give instructions to the jury on the Doctrine of Last Clear Chance.” Pursuant to augmentation of the record ordered upon the court’s own motion (Appeals rule 12), it appears that plaintiff requested the giving of an instruction based upon the formula stated in Brandelius v. City & County of San Francisco, 47 Cal.2d 729, 743 [ 306 P.2d 432 ], hence a proper one. 1 It should have been given if the record contains evidence substantially supporting every element of that theory (B…
discussed Cited as authority (rule) Guyton v. City of Los Angeles
Cal. Ct. App. · 1959 · confidence medium
The governing rule is restated in Brandelius v. City & County of San Francisco, 47 Cal.2d 729, 743 [ 306 P.2d 432 ], and need not be here repeated. [11] In determining the issue presented we are required to view the evidence in the light most favorable to appellant’s ease (Bonebrake v. McCormick, 35 Cal.2d 16, 19 [ 215 P.2d 728 ]).
discussed Cited as authority (rule) Parrott v. Furesz
Cal. Ct. App. · 1957 · confidence medium
In determining whether the trial court should have instructed the jury on the doctrine of last clear chance ‘ ‘ [w] e must view the evidence most favorable to the contention that the doctrine is applicable.” (Selinsky v. Olsen, 38 Cal.2d 102, 103 [ 237 P.2d 645 ] ; Bonebrake v. McCormick, 35 Cal.2d 16, 19 [ 215 P.2d 728 ].) Taking the evidence most favorable to the plaintiff on the theory of last clear chance we may fairly summarize it as follows: When plaintiff's automobile was 300 feet from the intersection of Pulgas Road he extended his left arm horizontally from the window of his car…
discussed Cited as authority (rule) Camacho v. Escobedo
Cal. Ct. App. · 1957 · confidence medium
(Bonebrake v. McCormick, 35 Cal.2d 16, 18-19 [ 215 P.2d 728 ].) It was shown that appellant had stated extrajudicially that Adela had merely handed the documents to him; that he then gave them back to her and did not see them again until after her death; also on an occasion after the claimed delivery it was .shown that Adela stated in appellant’s presence that, although she had signed the papers, she was not even sure that she would gire him the property, whereupon appellant stated that he did not want anything.
discussed Cited as authority (rule) W. B. Camp & Sons, Inc. v. Turner Steel Erection Co.
Cal. Ct. App. · 1956 · confidence medium
(Bonebrake v. McCormick, 35 Cal.2d 16, 18-19 [ 215 P.2d 728 ] ; Card v. Boms, 210 Cal. 200, 204 [ 291 P. 190 ]; Gates v. Pendleton, 71 Cal.App. 752, 756 [ 236 P. 365 ] ; Scott v. Sciaroni, 66 Cal.App. 577, 582 [ 226 P. 827 ] ; Code Civ.
cited Cited as authority (rule) Zanon v. Moher
Cal. Ct. App. · 1955 · confidence medium
(Bonebrake v. McCormick, 35 Cal.2d 16, 18 [ 215 P.2d 728 ].) The evidence must be reviewed in the light most favorable to appellant in order to determine whether the doctrine was applicable.
discussed Cited as authority (rule) People v. Cavanaugh (2×)
Cal. · 1955 · confidence medium
(Bonebrake v. McCormick (1950), 35 Cal.2d 16, 19 [ 215 P.2d 728 ]; People v. Southack (1952), 39 Cal.2d 578, 585 [ 248 P.2d 12 ]; see also 4 Wigmore, Evidence, 3d ed. (1940), 1048.) Defendant argues that the prosecution improperly used evidence, unnecessary to the proof of the case against defendant because cumulative, which was calculated, and could tend, to inflame the passions of the jury.
discussed Cited as authority (rule) Sparks v. Redinger (2×)
Cal. · 1955 · confidence medium
The latter ... is the cause of the danger, the former is the cause of the injury. . . .’ ” In Sills v. Los Angeles Transit Lines, 40 Cal.2d 630, 637 [ 255 P.2d 795 ], the court said: “. . . where a person sees another in a position which is in fact dangerous, he may not rely upon dullness to excuse him from not realizing the danger of the position . . . ; and if he sees the dangerous situation he must use reasonable diligence in analyzing the same.” In Bonebrake v. McCormick, 35 Cal.2d 16, 19 [ 215 P.2d 728 ] : “. . . the boy by his own negligence put himself in a position of danger …
discussed Cited as authority (rule) Daniels v. City & County of San Francisco (2×)
Cal. · 1953 · confidence medium
(B.A.J.I. 205, p. 310; Root v. Pacific Greyhound Lines, 84 Cal.App.2d 135, 137 [ 190 P.2d 48 ]; Alberding v. Pritchard, 97 Cal.App.2d 443, 444-445 [ 217 P.2d 1012 ].) Viewing the evidence in the light most favorable to the application of the doctrine and indulging every reasonable inference in support thereof (Bonebrake v. McCormick, 35 Cal.2d 16, 19 [ 215 P.2d 728 ]; Selinsky v. Olsen, 38 Cal.2d 102, 103 [ 237 P.2d 645 ] ; Hopkins v. Carter, 109 Cal.App.2d 912, 913 [ 241 P.2d 1063 ]), we have concluded that plaintiffs were entitled to the requested instruction.
discussed Cited as authority (rule) Erwin v. Conroy
Cal. Ct. App. · 1953 · confidence medium
Inasmuch as no claim is advanced by appellant that the evidence is insufficient to support the judgment, and as the principal contention of the appellant is that the court erred in refusing to instruct the jury upon the doctrine of the last clear chance, contrary to the usual practice upon appeal we shall, as required under the circumstances, set forth the evidence in the light most favorable to the plaintiff and appellant (Bonebrake v. McCormick, 35 Cal.2d 16, 19 [ 215 P.2d 728 ]; Brown v. McCuan, 56 Cal.App.2d 35, 36 [ 132 P.2d 838 ]).
discussed Cited as authority (rule) People v. Southack
Cal. · 1952 · confidence medium
(Bonebrake v. McCormick (1950), 35 Cal.2d 16, 18-19 [ 215 P.2d 728 ].) Misconduct of Prosecuting Attorney Defendant first complains of a line of questions which were asked him on cross-examination and of which the following are illustrative: “Q [by Mr. Finnerty, deputy district attorney].
discussed Cited as authority (rule) Crawford v. Alioto
Cal. Ct. App. · 1951 · confidence medium
It is positive evidence, that is to say, it is evidence which tends to prove the truth of the matter admitted.” (Bonebrake v. McCormick, 35 Cal.2d 16, at 18-19 [ 215 P.2d 728 ].) The reasons for the requirement of á cautionary instruction in respect to oral admissions of a party were clearly and cogently stated by our Supreme Court in People v. Bemis, 33 Cal.2d 395, at 398-99 [ 202 P.2d 82 ], as follows: “The dangers inherent in the use of such evidence are well recognized by courts and text writers.
discussed Cited as authority (rule) Overacker v. Key System
Cal. Ct. App. · 1950 · confidence medium
On the evidence “most favorable to plaintiff’s case’’ (Bonelrake v. McCormick, 35 Cal.2d 16, 19 [ 215 P.2d 728 ]) he observed the bus 215 feet away and then without looking toward it again walked in the crosswalk to the point where he was struck.
discussed Cited "see" Leasman v. Beech Aircraft Corp. (2×)
Cal. Ct. App. · 1975 · signal: see · confidence high
Code, § 1220; see Bonebrake v. McCormick, 35 Cal.2d 16, 18-19 [ 215 P.2d 728 ]; Fibreboard Paper Products Corp. v. East Bay Union of Machinists, 227 Cal.App.2d 675, 706-707 [ 39 Cal.Rptr. 64 ].) The determination whether facts have been ádduced; in the affidavits or declarations which present triable issues of fact is' to be made in the light of the pleadings.
discussed Cited "see" Leasman v. Beech Aircraft Corp. (2×)
Cal. Ct. App. · 1975 · signal: see · confidence high
Code, § 1220; see Bonebrake v. McCormick, 35 Cal.2d 16, 18-19 [ 215 P.2d 728 ]; Fibreboard Paper Products Corp. v. East Bay Union of Machinists, 227 Cal. App.2d 675, 706-707 [ 39 Cal. Rptr. 64 ].) (2b) The determination whether facts have been adduced in the affidavits or declarations which present triable issues of fact is to be made in the light of the pleadings. ( Coyne v. Krempels, 36 Cal.2d 257, 262 [ 223 P.2d 244 ]; Williams v. Winter, 206 Cal. App.2d 474, 477 [ 23 Cal. Rptr. 729 ]; Craig v. Earl, 194 Cal. App.2d 652, 655 [ 15 Cal. Rptr. 207 ].) *381 (4a) In this case defendants establi…
discussed Cited "see, e.g." United States v. Exxon Corp. (2×)
D.D.C. · 1980 · signal: see, e.g. · confidence low
See, e. g., Gaspard and Co. v. Govt. of Gaum, 427 F.2d 276, 278 (9th Cir. 1970), quoting Bonebrake v. McCormick, 35 Cal.2d 16, 18-19 , 215 P.2d 728 (1950) (an admission constitutes a “declaration by a litigant contrary to his position in the lawsuit”); Employers Mutual Casualty Co. of Des Moines v. Mosqueda, 317 F.2d 609, 612 (5th Cir. 1963) (admission must be “inconsistent with contentions later advanced at trial”).
Retrieving the full opinion text from the archive…
OSCAR L. BONEBRAKE Et Al., Appellants,
v.
JULIA FORTUNATE McCORMICK, Respondent
Sac. 6023.
California Supreme Court.
Mar 17, 1950.
215 P.2d 728
Willens & Boscoe and Herbert Chamberlin for Appellants., Honey & Mayall and Edwin Mayall for Respondents.
Gibson.
Cited by 61 opinions  |  Published
GIBSON, C. J.

Plaintiffs appeal from an adverse judgment in a suit for the wrongful death of their 14-year-old son who was struck by defendant’s car while riding his bicycle. The principal question presented is whether the trial court erred in refusing to give a requested instruction on the doctrine[*18] of last clear chance. This depends on whether there was evidence which would reasonably support a recovery on that theory. (See Raymond v. Hill, 168 Cal. 473, 479 [143 P. 743].)

Mrs. McCormick, the defendant, was driving east on the south side of a straight, dry, two-lane highway at 45 or 50 miles per hour, and the boy was traveling in the same direction on the same side of the road. The paved portion of the highway was 24 feet wide, and there were dirt shoulders about 8 feet in width on each side. Defendant testified that the boy was about 450 feet ahead of her when she first saw him. At that time there were no cars in front of her on the right side of the road, and the closest car coming from the opposite direction was a mile or a mile and a half away. The boy was then riding his bicycle on the shoulder near the edge of the pavement. Defendant testified that she sounded her horn when she was approximately 150 feet from the boy, and that he continued to ride ahead without turning until she drew even with him when he suddenly veered to the left into the path of her car.

There were three disconnected sections of skid marks variously estimated as commencing from 200 to about 300 feet before the point of impact. The first set of skid marks was straight and was followed by a gap of 15 or 20 feet; the second set angled slightly to the left and was followed by a gap of 30 to 35 feet; the third set angled farther to the left and continued past the point of impact to where defendant’s car came to a stop on the north side of the highway. The third set of skid marks began. approximately 100 feet before the point of impact and was described by a highway patrol officer as being the “heaviest and blackest that I have ever seen.” The accident occurred approximately 2 feet south of the center line of the highway.

The patrol officer testified that, immediately after the accident, defendant told him the boy looked back and turned to the left when she sounded her horn. According to her testimony, as we have seen, she sounded her horn when she was 150 feet away from the boy.

It is argued that the statement to the patrol officer was admissible solely for the purpose of impeachment, and that it could not be used in determining whether there was evidence upon which the refused instruction could be based. This argument, however, fails to take into consideration the fact that the statement was made by a party to the action. A declaration by a litigant contrary to his position in the[*19] lawsuit is admissible under an exception to the hearsay rule as an admission. It is positive evidence, that is to say, it is evidence which tends to prove the truth of the matter admitted. (See Code Civ. Proc., § 1870, subd. 2; Lane v. Pacific Greyhound Lines, 26 Cal.2d 575, 581 [160 P.2d 21]; Card v. Boms, 210 Cal. 200, 204 [291 P. 190]; 4 Wigmore on Evidence [3d ed. 1940], § 1048, p. 2; McBaine, California Evidence Manual [1st ed. 1945], § 257, p. 363.) The statement made by defendant outside the courtroom was admissible not only to impeach her testimony but also to prove that what she then said was true. Language to the contrary in Lopez v. Wisler, 58 Cal.App.2d 455, 462 [136 P.2d 816], is disapproved.

In determining whether the court erred in refusing to instruct on the doctrine of last clear chance, the evidence must be viewed in the light most favorable to plaintiff’s case. (Brown v. McCuan, 56 Cal.App.2d 35, 36 [132 P.2d 838].) When so considered, it appears that all necessary elements for the application of the doctrine are present. (See Girdner v. Union Oil Co., 216 Cal. 197, 202 [13 P.2d 915].) It could be inferred from the facts proved that the boy by his own negligence put himself in a position of danger from which he could not escape by the exercise of ordinary care, that defendant knew of the boy’s peril, that she had the last clear chance to avoid the accident by the exercise of ordinary care but failed to do so, and that the boy was killed as a proximate result of such failure.

Accordingly, plaintiffs were entitled to an instruction on the doctrine of last clear chance, and in view of the state of the record, the refusal to give it was prejudicial error.

The judgment is reversed.

Shenk, J., Edmonds, J., Carter, J., Traynor, J., Schauer, J., and Spence, J., concurred.