Grassie v. American LaFrance Fire Engine Co.

The plaintiffs brought this action to recover damages for the death of William S.

The case was tried before the court sitting with a jury, and the jury returned a verdict in favor of the defendant and judgment was thereupon entered. From this judgment the plaintiffs prosecute this appeal.

Mr. Grassie was killed when a fire-engine, upon which he was riding, owned and operated by the defendant American LaFrance Fire Engine Company, collided with a telegraph pole, during the time said fire-engine was making a test run. The specific negligence alleged in plaintiffs’ /complaint is as follows: “The said defendant (American La-France Fire Engine Company) by its agents and servants . . . did procure said W. S. Grassie to mount said apparatus, occupy a seat, and they did then drive said apparatus rapidly in a westerly direction along Mariposa Street at a high rate of speed and in the vicinity of Marengo Avenue, approached a double curve at a high, unlawful and reckless rate of speed. They did fail to operate said machine on the right-hand side of the highway, but did operate and drive said machine upon the center and also upon the left-hand side of a highly crowned highway, and by reason of said high speed, and by reason of the operation of said vehicle in the wrong portion of the highway, and a portion not designed to accommodate vehicles traveling at a high speed in a westerly direction, did fail to properly control said vehicle and did recklessly and negligently drive and propel said vehicle in a tangent from said curve, which was a double curve, across certain parallel railway tracks, and over and against a certain telephone pole, against which said apparatus came in contact. That by reason of the collision with said pole, said W. S. Grassie was crushed, suffering grievous bodily injuries, solely from the effect of which he died. ...”

The answer of the defendants raised several defenses, among them being: (a) That there was no negligence on the part of either of the defendants; (b) That the accident occurred solely as a result of the negligence of the deceased, in that his elbow interfered with the arm of the driver, causing the driver momentarily to lose control of his machine, resulting in the accident; (c) That even assuming that defendant was traveling in excess of the legal

The facts are these: Altadena is an unincorporated residential town in Los Angeles County. The board of supervisors of Los Angeles County had, prior to the death of William' S. Grassie, which occurred on March 17, 1924, organized what is known as the “Altadena County Fire Protection District,” which included the town of Altadena. On or about the 25th of February, 1924, said board of supervisors had made arrangements to purchase from the defendant American LaFrance Fire Engine Company one fire-engine for the Altadena district. Some of the citizens of Altadena had suggested to the officers of the Altadena County Fire Protection District that two fire-engines would be required for the protection of the district. The county fire department was opposed to the purchase of two engines, claiming that one engine placed as nearly in the center of the district as possible would afford ample fire protection. To determine the question, Mr. Johnson, deputy chief of the county fire department, arranged with the defendant American LaFrance Fire Engine Company to take a fire-engine, such as the district intended to purchase, to Altadena and to make test runs with it from the central portion of the district to the outlying territory. The fire-engine was to be run on these tests at the same rate of speed that fire-engines ordinarily travel in going to a fire. Pursuant to this arrangement, the defendant American LaFrance Fire Engine Company sent a fire-engine from Los Angeles to Altadena in charge of defendant George Kenley, who was the delivery engineer of the defendant company. Mr. Kenley drove this engine to a point near the center of the district and was there met by a com

While the evidence is somewhat conflicting on the point, there was substantial testimony to the effect that before the second or right-hand curve was reached, and while on that curve, the driver of a vehicle approaching from the

Appellants make this contention: “A reversal of this ease is sought on the ground that the court misdirected the jury as a matter of law, principally on the ground that the court directed the jury as a matter of law that deceased was at the time in a joint undertaking or enterprise with the defendants and that any negligence of the defendants was, therefore, chargeable to the deceased. . . . There is no question of assumption of risk involved in this case. It was a clear case of the deceased being an invited guest and, therefore, neither the assumption of risk or joint adventure had anything whatever to do with the ease.”

The court did not instruct the jury that, as a matter of law, the deceased was engaged in a joint enterprise, but did instruct the jury in effect that if it found that Mr. Grassie participated in a test run of a fire-engine, made at the same rate of speed at which a fire-engine ordinarily travels to a fire, and that he made no objection to the speed, that he assumed the risk of the dangers resulting from traveling at a speed faster than the limit allowed by law, provided the speed was such as was used in going to a fire.

These instructions are based entirely upon the familiar principle of law stated in 19 California Jurisprudence, page 589, as follows: “One who, for purposes of his own, voluntarily places himself in a position of danger, assumes the risks ordinarily incident to such a position, and must exercise a quantum of care commensurate with the additional danger.” (See, also, Graff v. United Railroads, 178 Cal. 171 [ 172 Pac. 603 ]; Morgan v. Los Angeles Pacific Co., 13 Cal. App. 12 [ 108 Pac. 735 ]; Roberts v. Sierra R. R. Co., 14 Cal. App. 180 [ 111 Pac. 519 , 527]; Trousclair v. Pacific Coast Steamship Co., 80 Cal. 521 -524 [ 22 Pac. 258 ]; Fisher v. Southern Pacific Co., 89 Cal. 399 [ 26 Pac. 894 ];

Appellants contend that deceased was an invited guest of the defendants. We are unable to find in the record any evidence that any of the agents or employees of the fire-engine company invited deceased to become a passenger on this fatal run. Mr. Graham, the president of the citizens’ committee, requested deceased to make the trip, and Mr. Barker, an employee of the county, told him what position to take on the engine. However, it seems to us to be entirely immaterial whether Mr. Grassie was an invited guest or not. Mr. Grassie know that the engine was going to make a run just the same as if it was going to a fire; he also knew that fire-engines going to a fire traveled at a high rate of speed, and he knew the condition of the streets over which the run was to be made. Notwithstanding all these facts, Mr. Grassie voluntarily assumed the dangerous position of a passenger on this fire-engine on this test run.

Under these circumstances, we hold that Mr. Grassie assumed the risk ordinarily incident to that dangerous position, irrespective of his status, and the defendant fire-engine company was not liable for any injury sustained by him arising from the risks ordinarily incident to the dangerous position which he had voluntarily assumed. Manifestly, a passenger upon a fire-engine going to a fire is not in a safe place. It was, therefore, incumbent upon Mr. Grassie, in the exercise of the due care which the law always exacts, to take greater precautions for his own safety than if he were a passenger in an ordinary automobile. Upon the other hand, the fire-engine company was only under obligation to run at the same rate of speed and use the same degree of care and caution that fire apparatuses usually run and operate in traveling to a fire. (Kelly v. Santa Barbara R. R. Co., 171 Cal. 415 [Ann. Cas. 1917C, 67]; Clark v. Atchison, Topeka & Santa Fe R. R. Co., supra.)

Appellants rely upon the case of Curran v. Earl C. Anthony, Inc., 77 Cal. App. 462 [ 247 Pac. 236 ]. The facts of that case are entirely different from those in the case at bar. In that case the plaintiff merely went riding in a touring car with the salesman to demonstrate the auto

Appellants further contend that the court erred in giving certain other instructions. We have examined all the instructions given, and, taken as a whole, they fully and fairly state the law upon all the issues involved.

We think the judgment was correct under the facts and the law and should be affirmed, and it is so ordered.

Plummer, J., and Finch, P. J., concurred.