This is an action for damages for personal injuries arising out of a collision of automobiles. Plaintiff prevailed and the defеndant appeals.
On August 1, 1950, at about eight o ’clock p. m., the plaintiff was riding as a passenger in a 1937 Chevrolet pick-up driven by hеr husband. The pick-up was *446 traveling in a westerly direction on a street in Willamina, and, as the pick-up was proceeding alоng the street, a large truck with a tandem trailer, going in the same direction, passed the pick-up at an excessive ratе of speed.
The defendant, who was at the time of the accident acting as a special police officer for the city, had parked his automobile, which the city had equipped with a siren, in the driveway of a filling station on the south side of this strеet. The defendant, without sounding his siren, pulled away from the filling station driveway to follow and intercept the large truck and trailer, and, in so doing, drove into and across the street and collided with the pick-up in which the plaintiff was riding.
The defendant claims that the сourt erred in giving certain instructions and refusing to give requested instructions of the defendant which set out the defendant’s theory of the case to the effect that the defendant was at the time of the accident an officer operating an emergеncy vehicle.
The general rule is:
“Firemen and police officers are vested with official discretion which may not be deemed to be аbused by violating statutes and ordinances regulating traffic upon the public highways. This is not because of any statutory enactment еxempting peace officers and firemen from such rules of the road, but upon the ground of sound public policy.
“In a word, the statutes, which plaintiff invokes, were unnecessary as to firemen and peace officers, in the discharge of their duties as such. As to them no different status was created by such statutes than the status which was theirs before the enactment of such law.” Buck v. Ice Delivery Co.,146 Or 132 , 138,29 P2d 523 .
*447 However, subsequent to the above decision, tbe legislature defined an “authorized emergency vehicle”, as follows:
“(d) ‘Authorized emergency vehicle.’ Vehicles of the fire department, fire patrol, police vehicles, emergency vehicles of municipal departments or public service corporations and ambulances while being used for emergency purposes and displaying the required lights and sounding a siren or other audible warning.” § 115-301, OCLA, as amended by § 1, ch 279, Oregon Laws 1947.
And as to rights of way and speed, the legislature further provided as follows:
“(b) The driver of a vehicle upon a highway shall yield the right of way to authorized emеrgency vehicles when the latter are operated in emergencies and the drivers thereof sound audible signal by bell, siren, сompression or exhaust whistle. This provision shall not operate to relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway, nor shall it protect the driver of any such vehicle from the consequence of an arbitrary exercise of such right of way.” §115-338, OCLA, as amended by § 1, ch 301, Oregon Laws 1949.
“The speeds designated in or pursuant to the provisions of this act shall not apply to authorized emergency vehicles when operated in emergencies and the drivers thereof sound audible signal by bell, siren or exhaust whistle. This provision shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the street, nor shall it proteсt the driver of any such vehicle from the consequence of a reckless disregard of the safety of others.” § 115-325, as amended by § 3, ch 458, Oregon Laws 1941.
*448 The defendant, having failed to sound his siren or give other audible warning in the operation of his vehicle, which is a рrerequisite to his right to become vested with official discretion to avoid the effect of certain limitations of the statutеs and ordinances regulating traffic upon the public highways, was not in a position to claim that he was at the time operating an emergency vehicle within the exemption granted by the statutes.
The purpose of the statute is to warn other users of thе highway that an emergency vehicle is demanding greater than normal rights upon the highway and to place the driver of that vehiсle in a favored position as to the use of the highway.
The defendant having failed to comply with the statute, the court correctly instructed the jury, in effect, that the defendant had no greater rights to the use of the highway than any other person normally dеsiring to operate a vehicle thereon.
The plaintiff charged the defendant with failure to maintain a proper lоokout, and the defendant complains of the trial court’s refusal to take this charge of negligence from the considеration of the jury, upon defendant’s statement that he saw the pick-up approaching.
The evidence in this case raises a question of fact: Was the defendant so intent upon pursuit of the alleged traffic violator, that, in driving out and across thе center line of the highway and into the side of the Chevrolet pick-up, he failed to properly note the approach of the pick-up? The facts surrounding the collision might well lead a jury to consider the defendant’s claim, that he was watсhing the approach of the Chevrolet pick-up, to be an assertion without merit. The *449 court properly submitted this issue of nеgligence to the jury.
Defendant further complains that the court erred in submitting to the jury the question of damages claimed by the plаintiff under her allegation of an aggravation of a preexisting arthritic condition. The testimony of the plaintiff shows that prior tо the accident she suffered no pain in the region of her neck, and that after the accident she did. The medical testimоny was to the effect that arthritis is not always painful but may become so due to trauma. Webster’s New International Dictionary, 2d еd, defines “aggravate” to mean: “to irritate; to make worse or more severe.”
The plaintiff had suffered from arthritis. The plаintiff’s bodily comfort was changed so that the arthritic condition in the neck region became painful. This was an aggravation of a previous diseased condition.
The judgment is affirmed.