Goldstein v. Rogers

Plaintiffs Merle Pagh and Arthur Gold-stein appeal from separate and adverse judgments rendered in their consolidated personal injury actions upon a jury

On the morning of April 2, 1946, plaintiffs, who are Los Angeles police officers, were assigned to general traffic and traffic investigation duty in a Los Angeles police car. The car was distinctively painted in black and white, and was equipped with a siren and red light in good working condition, as well as a two-way radio. Pagh was driving, with Goldstein riding beside him on the front seat. Shortly before 8 a. m. they received a radio call from the police dispatcher, directing them to proceed to “83rd and Sepulveda, traffic, accident, call ambulance if needed. Code 3.” The official instructions of the Police Department defined the phrase “Code 3” as follows: “A call accompanied by the statement ‘Code Three’ is an emergency call and is to be answered immediately and in a manner which will enable the officer to get to the scene as quickly as possible with safety. When the call is assigned to a vehicle equipped with a red light and siren such equipment shall be used to obtain the right-of-way.” Upon receiving the call, Pagh immediately started for 83d Street and Sepulveda, turning on his siren and red light. While proceeding south on Sepulveda, as he approached the intersection of National Boulevard, Pagh swung over to the left side of the road to go around several southbound cars stopped there waiting for the red traffic signal to change. A gas station partially obstructed his view to the left from which direction defendant’s car was approaching. Pagh testified that he first saw defendant’s car about 60 or 70 feet away as he, Pagh, was about to enter the intersection. He applied his brakes and there was evidence that his ear was traveling at a slow speed when the ears collided near the center of the intersection. At the time of the collision, the signal was green for traffic on National Boulevard. Rogers testified that he was driving west on National Boulevard with his windows rolled up and the radio playing; he didn’t see the police car or any ears at all on Sepulveda Boulevard prior to the accident; and he made no effort to stop his car at any time before the actual collision because he “saw no

At the outset, we may put to one side respondent’s contention that the jury might have based its verdict on a finding that plaintiffs did not have a siren and red light operating, and hence were not entitled to the privileges attaching by statute to operators of emergency vehicles. (Veh. Code, § 454.) The testimony of both plaintiffs that the light and siren were on was corroborated by that of several eyewitnesses. Mrs. Grasmehr, a housewife, heard the siren from two blocks away. Carl Hunter, who was stopped at the intersection facing north on Sepulveda, saw the red light and heard the siren clearly when the police car was 400 or 500 feet away. Raymond Swayze and Prank Hillyer, who were also stopped at the traffic signal, heard the siren clearly even before they saw the police car itself, although the latter had his auto radio playing. Merton Overturf, a police mechanic, found the red light still burning when he arrived at the scene of the accident. Clyde Dugger, a police sergeant, saw the red light still burning after the accident, from a half mile away, as he approached the scene. William J. Calder,. defendant’s witness, heard the siren “faintly” before he saw the police car, and testified that the red light was burning. Although witness Swayze made no observation as to whether there was a red light on plaintiffs’ car, and Hillyer couldn’t recall whether he saw a red light or not, neither testified that there was no such light. Although defendant stated he did not see the police car, he was not asked and did not testify as to whether or not he heard the siren. It is apparent that the evidence would not have supported a finding, if one were made, that plaintiffs did not have the siren and red light in operation prior to the accident.

As grounds for reversal, appellants claim prejudicial error in the giving of certain instructions and in the court’s refusal to give other instructions requested by them. In the course of the charge to the jury, the court gave the following instruction based on section 510 of the Vehicle Code: “The basic speed law of this state is as follows: ‘No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent, having due regard for the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or prop

Section 454 of the Vehicle Code expressly relieves the operator of an emergency vehicle being driven in response to an emergency call from compliance with the regulations contained in chapter 6 of division 9 of the code, where, as a warning, a siren is sounded and a red lamp is displayed. Chapter 6 is entitled, “Speed Laws,” and includes section 510, the basic speed law of the state. Since the decision in Lucas v. City of Los Angeles, 10 Cal.2d 476 [75 P.2d.599], it must be considered as settled law that a finding of negligence in the operation of an emergency vehicle cannot be predicated upon violations of speed regulations alone, where the required warning has been given. (See, also, Reed v. Simpson, 32 Cal.2d 444 , 450-451 [ 196 P.2d 895 ]; Coltman v. City of Beverly Hills, 40 Cal.App.2d 570 , 573 [ 105 P.2d 153 ].) The error in the instructions is apparent. They authorized the jury to predicate a finding of contributory negligence merely upon .a determination that plaintiffs drove at a speed greater than would have been reasonable under the circumstances for a nonexempt vehicle, or at a speed which, if maintained by an ordinary vehicle, would have been dangerous to the safety of persons or property. By its instructions, the court denied plaintiffs the benefit of a privilege expressly conferred upon operators of emergency vehicles by the Legislature. Similar instructions were held to be erroneous in Raynor v. City of Arcata, 11 Cal.2d 113 , 117-118 [ 77 P.2d 1054 ], That the error was prejudicial cannot be doubted. There was a conflict in the evidence as to the speed of the police car as it entered the intersection. Several witnesses estimated it at 20 to 25 miles per hour, and one at 40 or 50 miles per hour. The jury could have inferred that the speed with which plaintiffs’ emergency vehicle entered the intersection against the red traffic signal exceeded the limits prescribed by the basic speed law, and hence was negligent, despite the operation of a siren and red light.

Appellants contend further that the (instructions were erroneous in that they left to the jury, without qualification or explanation, the issue whether plaintiffs were precluded from recovering from defendant because of a failure to drive “with due regard for the safety of all persons using

Under the facts of the present case plaintiffs could not have been found guilty of contributory negligence unless the jury determined from the evidence that they had failed to sound a siren in a manner that would have afforded others a reasonable opportunity to yield the right of way, or that they had maintained a speed which under the circumstances constituted an arbitrary exercise of their right-of-way privilege. If the siren was sounded in a manner which afforded others a reasonable opportunity to yield the right of way plaintiffs were not to be held negligent because of their speed alone, nor their failure to drive on the right hand half of the highway, or to stop at the intersection because the traffic signal was against them. In such circumstances they would not have been guilty of driving without due regard for the safety of others nor of an arbitrary exercise of their right-of-way privilege. If, however, the plaintiff driver had observed that defendant was not yielding the right of way, and that a collision would probably result unless plaintiff driver slackened his speed, the failure to slacken speed would have amounted to the arbitrary exercise of the right-of-way privilege, and a failure to drive with due regard for the safety of others.

By its failure to instruct the jury as to the proper scope of section 454 the court, in effect, permitted them to find plaintiffs contributorily negligent for driving with what the

The attempted appeal from the order denying a new trial is dismissed. The judgments are reversed.

Wood, J., and Vallée, J., concurred.