Davidson v. County of Marin

This is an appeal by plaintiff, Arthur Deffay Davidson, from a judgment, after jury verdict in favor of defendants and respondents, Marin County and Frank Machado, in an action for damages for the death of Youler Davidson, wife of appellant, and for personal injuries to appellant, alleged to have arisen out of a collision between appellant’s automobile and respondent county’s fire truck driven by respondent Machado. No personal judgment was sought against respondent Machado. Judgment was rendered in favor of appellant on respondents’ cross-complaint.

The accident occurred on August 22, 1953, at about 7:30 p. m. at the intersection of United States Highway 101 and the Tiburon-Mill Valley Road (State Route 52), known as the Alto Wye intersection. Appellant Davidson and his wife were driving in a southerly direction on United States High

When respondent Machado received the call that there was a fire at a restaurant known as the Blue Fountain, located on the easterly side of United States Highway 101, he left his home which was some 8 blocks northwest of the Alto Wye intersection. He drove the fire truck down Tower Drive to its intersection with State Route 52, turned east on State Route 52, passing to the right of several vehicles which were stopped thereon, headed in an easterly direction. Machado testified that he believed that he had been traveling at between 30 to 35 miles per hour as he entered the intersection, but slowed down upon entering it. In the hospital after the accident, Machado stated that he had been traveling between 5 and 10 miles per hour. When he was 400 to 500 feet from the intersection the signal light showed amber. The witness Williams, who resided to the northeast of the intersection, had observed that all traffic about the intersection had stopped as the fire truck entered it with the exception of one vehicle proceeding southward in the inside fast lane of United States Highway 101. This was appellant’s car which collided with the left front of the fire truck.

Appellant testified that as he drove over the crest of the hill north of the Alto Wye intersection he heard a siren, but that he heard no siren after that. He was traveling at a speed of 30 miles per hour, and when he was about 300 or 400 feet from the intersection, the traffic signal turned green, that he looked both east and west, saw only one or two cars headed easterly, and continued on to the point of collision. He did not at any time prior to the collision apply his brakes. Machado was rendered unconscious as a result of the crash. When Machado later spoke to appellant in Marin General Hospital, appellant said “my wife told me so.” Appellant’s wife died as a result of her injuries.

Appellant contends that the trial court erroneously instructed the jury that there is a negligent operation of an emergency vehicle only where the driver of such vehicle fails to give a timely warning or otherwise makes an arbitrary exercise of the exemption from the rules of the road which can be said to be wilful misconduct. It is appellant’s contention that even though the required warnings are given, ordinary negligence, such as failing to keep a proper lookout, may be sufficient to impose liability upon the county. Section 454 Motor Vehicle Code provides as follows:

“The driver of an authorized emergency vehicle shall be exempt from those provisions of this code herein set forth under the following conditions:

“ (a) Said exemptions shall apply whenever any said vehicle

is being driven in response to an emergency call or when used in the immediate pursuit of an actual or suspected violator of the law, or when responding to but not upon returning from a fire alarm.

“(b) Said exemptions shall apply only when the driver of said vehicle sounds a siren as may be reasonably necessary and the vehicle displays a lighted red lamp visible from the front as a warning to others. Under the circumstances hereinabove stated, any said driver shall not be required to observe those regulations contained in Chapter 3 or in Chapters 6 to and including Chapter 13 of Division 9 of this code, hut said exemptions shall not relieve the driver of any said vehicle from the duty to drive with due regard for the safety of all persons using the highway, nor shall the provisions of this section protect any such driver from the consequences of an arbitrary exercise of the privileges declared in this section.”

Having read the foregoing section to the jury, the court instructed that the exemption applied to those sections of the Vehicle Code regulating speed, use of different lanes, overtaking and passing, rights-of-way, rights and duties with respect to pedestrians, street cars, safety zones, standing and parking, and then stated:

“It follows that when there exist the conditions which said statute requires as a basis for said exemption it is not negligence for the driver of such an emergency vehicle to disregard the rules from which he thus is exempted, unless he is guilty of an arbitrary exercise of the privileges embraced in that exemption.

“It is equally important to note, however, that the exemption does not apply if any one of the conditions upon which it is based is, in fact, absent, and in such a case the driver of the emergency vehicle has no privileges over other drivers on the highway. It then is his duty to obey the laws that apply generally to the use of the highway and he is held to the same duty of exercising ordinary care.”

The jury was then instructed as to what would constitute an arbitrary exercise of the privileges given an emergency vehicle by section 454, and told that “Whether or not the driver of an emergency vehicle has complied with all the conditions necessary to bring him within section 454 of the Vehicle Code, and whether or not he arbitrarily exercises his privileges as granted to him under said section is a question of fact for you, the jury, to determine.” It is clear, there

Despite the clear language of section 454, appellant argues that even though the fire truck may have given the statutory warning, which would give the driver the benefit of the exemption, he can still be held liable for ordinary negligence for failing to keep a proper lookout. The Supreme Court cases have, however, clearly held to the contrary. In Lucas v. City of Los Angeles, 10 Cal.2d 476 [ 75 P.2d 599 ], it was held that when the statutory signals have been given, all matters concerning “speed, right of way, and all other ‘rules of the road’ are out of the picture; the only questions of fact, in so far as the public owner is concerned, are first, whether there was an emergency call within the terms of the statute; second, whether the statutory warning was given, and third, whether there was an arbitrary exercise of these privileges.” (And see Raynor v. City of Arcata, 11 Cal.2d 113 [ 77 P.2d 1054 ].) In Reed v. Simpson, 32 Cal.2d 444 [ 196 P.2d 895 ], it was argued that if the driver of the emergency vehicle was proceeding at a moderate speed, his “failure to keep on the lookout and avoid the dangers of traffic, which was concedely heavy at the time, contributed proximately to the fatal collision.” But the court there stated that since the driver in the performance of his official duty was exempted from the restriction of speed, right of way, and all other “rules of the road,” his lack of due care cannot be predicated on those elements if the “reasonably necessary” warning contemplated by the statute was given. The Peerless Laundry Service v. City of Los Angeles, 109 Cal.App.2d 703 [ 241 P.2d 269 ], cited by appellant, was one in which a fire truck ran over the curb and sidewalk and crashed into a building because of defective brakes, and loss of control by the driver. The court stated that the defective brakes plus the driver’s relaxation of vigilance could be found to be negligence which was not the result of the disregard of any regulation as to which the driver was given immunity by section 454. The case then went on to point out that section 454 was never intended to apply to this type of situation, since screaming sirens and flashing red lamps could not help respondent protect his building against such an accident. Obviously the statute was intended to open a path on the street

Appellant claims that prejudicial error was committed in instructing the jury that the expression “with due regard for the safety of all persons using the highway” as used in Vehicle Code, section 454, subdivision (b), means only that the driver of an emergency vehicle must, by suitable warning, give others a reasonable opportunity to yield the right of way. The court in defining “with due regard for the safety of all other persons using the highway” as used in section 454, instructed that it meant that the driver of an emergency vehicle must, by suitable warning, give others a reasonable opportunity to yield the right of way. The court instructed, “The giving of the audible signal by siren and the display of a red light visible from the front is the measure of care on the part of the operator of the emergency vehicle, and if this is done his duty of care is performed, subject to the limitation that he may not make an arbitrary exercise of the privileges given him by the exemption.” That the above instruction is a correct statement of the law cannot be doubted. The expression “with due regard for the safety of all persons using the highway” has been thus defined in Lucas v. City of Los Angeles, 10 Cal.2d 476 , 483 [ 75 P.2d 599 ] ; Raynor v. City of Arcata, 11 Cal.2d 113 , 117 [ 77 P.2d 1054 ]; Reed v. Simpson, 32 Cal.2d 444 , 449-450 [ 196 P.2d 895 ].

Appellant maintains that the last clear chance doctrine as applied to Vehicle Code, section 454 eases is not limited to the doctrine of discovered peril but is applicable where the driver of an emergency vehicle could have and should have seen that a collision could be prevented only in the event that he took immediate action. He cites language from Washington v. City & County of San Francisco, 123 Cal.App.2d 235 [ 266 P.2d 828 ], a case in which a bystander was injured when a police car and another collided and were thrown against him. Judgment was had against the city and the driver of the other vehicle. The briefs in this case show that the city’s argument that the instruction as to last clear chance was erroneously given, was based on the fact that although there was evidence that the driver of the police car saw the

It is argued that the last clear chance instruction given by the trial court subsequent to the earlier instruction concerning arbitrary exercise of the privilege, which was in the nature of last clear chance, did not cure the error in the earlier instruction. However, as determined above, there was no error in that instruction. There was evidence, though perhaps slight, that would have justified the usual last clear chance instruction. If the jury decided that appellant’s evidence that he heard no siren as he approached the intersection was to be accepted by them as evidence that none was then being sounded,

The following instruction is complained of as constituting prejudicial error: “There is a negligent operation of an authorized emergency vehicle responding to an emergency call only where the driver of such vehicle fails to give a timely warning or otherwise makes an arbitrary exercise of the exemption from the rules of the road which can be said to be wilful misconduct. ’ ’ In Lucas v. City of Los Angeles, supra, an arbitrary exercise of the statutory privilege was stated to be a charge similar to the charge of “wilful misconduct.” It then discussed the elements of such conduct as being something greater than gross negligence, quasi criminal in nature, the intentional doing of something with the knowledge that it is likely to result in serious injury or with a wanton and reckless disregard of the possible consequences. This was reaffirmed in Raynor v. City of Arcata, supra, at page 118. We find no error in the instruction.

Finally, it is contended that there was no substantial evidence in the record that would support a finding of contributory negligence on the part of appellant. There was evidence that appellant heard a siren when he was at the crest of the hill; that almost all traffic at the Alto Wye intersection had come to a halt; that despite the fact that he heard a siren a short while before, he did not slacken his speed; that although because of the physical evidence that appellant ran into the