73 Cal. App. 2d 621 | Cal. Ct. App. | 1946
This is an appeal from a judgment of nonsuit entered at the close of plaintiff’s evidence in a suit for personal injuries sustained when the automobile operated by plaintiff’s husband, in which plaintiff was riding, was struck by a fire apparatus of defendant city at the intersection of Fourth and Bryant Streets in San Francisco. The accident occurred on October 12, 1939. The complaint was filed January 18, 1940. The date of the trial was April 25, 1945. The transcript on appeal was filed June 20, 1945; appellant’s opening brief on October 10, 1945; respondent’s brief on December 21, 1945, and appellant’s reply brief on January 14, 1946.
Plaintiff rested her case on her own testimony and that of • her husband. In substance, the husband and wife testified that they were proceeding in the wife’s automobile south on Fourth Street. At the intersection of Bryant Street, the red stop light showed on the “stop-and-go” automatic signal, which caused them to stop next to the curb and near the signal. A large building interfered with the view west on Bryant Street except for a space of less than one of the city blocks located in that area. The chief of the fire department in his official car crossed the intersection with the siren sounding, traveling on Bryant Street toward the east. The only open window in plaintiff’s car was the one to the left of the
The motion for nonsuit was presented as follows: “May it please your Honor, the defendant City and County of San Francisco at this time makes a motion for a non-suit on the ground that the plaintiff has failed to prove any wilful misconduct on the part of the defendant City and County of San Francisco, which is necessary to be proved in the type— in a case of this type before liability can be fastened on the city;
“And secondly, on the ground that the evidence affirmatively shows as a matter of law that the plaintiff was guilty of contributory negligence which proximately contributed to her own injuries at the time of the accident.” It is conceded that any negligence on the part of the driver husband would .be imputable to the wife who was in the car at the time of the accident. (Moore v. Miller, 51 Cal.App.2d 674 [125 P.2d 576].)
Respondent does not seek to sustain the trial court’s action on the first ground of the motion for nonsuit urged in the court below. However, in view of the conclusion reached hereinafter with respect to the second ground, and the general rule that if the trial court’s action may be sustained on any ground, such action must be affirmed, it is necessary to consider what acts on the part of a county employee must be proved by a plaintiff in order to establish a prima facie case under section 400 of the Vehicle Code.
In 1939 the pertinent portion of the Vehicle Code with respect to liability for injuries sustained through negligently operated county vehicles provided: (§400.) “The State, and every county, city and county, municipal corporation . . . owning any motor vehicle is responsible to every person who sustains any damage by reason of death, or injury to person or property as the result of the negligent operation of any said motor vehicle by an officer, agent, or employee or as the result of the negligent operation of any other motor vehicle by any officer, agent or employee when acting within the scope of his office, agency or employment; and such person
(§401.) “No member of any . . . fire department maintained by a county ... is liable for civil damages on account of personal injury to . . . any person . . . resulting from the operation, in the line of duty, of an authorized emergency vehicle while responding to an emergency call ... or when responding to but not upon returning from a fire alarm.”
(§ 44(a).) “An ‘Authorized emergency vehicle’ is a . . . vehicle publicly owned and operated by a . . . fire department ... in responding to emergency calls. ...”
(§ 554.) “Upon the immediate approach of an authorized emergency vehicle giving audible signal by siren . ..: (1) The driver of every other vehicle shall yield the right of way and shall immediately drive to a position parallel to, and as close as possible to, the right hand edge or curb of the highway clear of any intersection and thereupon stop and remain in such position until such authorized emergency vehicle has passed, except when otherwise directed by a police or traffic officer.”
To establish a prima facie ease under these sections, all the facts that plaintiff was called upon to prove in support of the allegations of the complaint were that on or about the date of the alleged accident the plaintiff was riding in an automobile at or near the place designated in the complaint, and that the automobile was struck by a municipal vehicle under the control of employees of the city and county of San Francisco in the actual performance of their duties, and that the municipal vehicle was operated in a negligent manner; that plaintiff sustained injuries as the result of the negligence of the municipality or its agency; and, finally, that a claim had been filed and rejected prior to the filing of the complaint. This last allegation is admitted in the answer. That the fire apparatus was owned by the city and county of San Francisco and “was being operated in the capacity of an authorized emergency vehicle and was responding to an,
“If the driver of an emergency vehicle is at all times required to drive with due regard for the safety of the public as all other drivers are required to do, then all the provisions of these statutes relating to emergency vehicles become meaningless and no privileges are granted to them. But if his ‘due regard’ for the safety of others means that he should, by suitable warning, give others a reasonable opportunity to yield the right of way, the statutes become workable for the purposes intended.” (Lucas v. City of Los Angeles, 10 Cal. 2d 476, 483 [75 P.2d 599].) “It is evident that the right of way of fire apparatus over other vehicles is dependent upon ‘due regard to the safety of the public’ only in so far as such ‘due regard’ affects the person required to yield the right of way. Notice to the person required to yield the right of way is essential, and a reasonable opportunity to stop or otherwise yield the right of way necessary in order to charge a person with the obligation fixed by law to give precedence to the fire apparatus. ” (Balthasar v. Pacific Elec. Ry. Co., 187 Cal. 302, 311 [202 P. 37, 19 A.L.R. 452].) “The expression ‘arbitrary exercise of the privileges’ has also caused
In the present case whether a siren signal was given, and the necessity of giving a signal, are questions of fact which on motion for nonsuit must be determined in plaintiff’s favor. Plaintiff’s husband testified that he did not hear a signal by the truck or engine that hit the automobile. In Rogers v. City of Los Angeles, 6 Cal.App.2d 294, 296 [44 P.2d 465], the court said: “ ‘The weight to be given negative testimony, where it is claimed that signals were not given, is a question for the jury; and such evidence is sufficient to sustain a verdict even though in conflict with other evidence that a warning was actually given. (Thompson v. Los Angeles Ry. Co., 165 Cal. 748 [134 P. 709] ; Keena v. United Railroads, 197 Cal. 148 [239 P. 1061].)’ ” (See, also, Stone v. San Francisco, 27 Cal.App.2d 34 [80 P.2d 175].) From the foregoing it is concluded that on the first ground for a non-suit the evidence introduced was sufficient to justify a denial of the motion.
The question of contributory negligence as a matter of law presents the further question which is mainly relied on by respondent to sustain the trial court’s action.
In considering the merits of the respective contentions of, and cases relied on by, appellant and respondent, certain general principles are to be noted. A pedestrian or an automobilist who is aware of the approach of a vehicle about to cross an intersection in a manner or under such circumstances as to cause a reasonable person to perceive that danger
A pedestrian or an automobilist crossing an intersection is under a continuing duty to use ordinary care. The amount of care to be used depends upon the facts of the particular case, though definite guides are available covering certain circumstances. In Hamlin v. Pacific Electric Ry. Co., 150 Cal. 776, 780 [89 P. 1109], the court said: “Manifestly it is impossible for one driving a vehicle along a street to look in both directions at once, and it should ordinarily be left to the jury to determine, under the circumstances of each particular case, what amount of vigilance was requisite in order to constitute due care.” (See, also, Wright v. Los Angeles Ry. Corp., 14 Cal.2d 168 [93 P.2d 135] ; Nederveld v. Bohlander Truck Co., 52 Cal.App.2d 539 [126 P.2d 657].) The “ordinary care” may not consist in all eases in looking in a certain direction. In Young v. Tassop, 47 Cal.App.2d 557 [118 P.2d 371], the court distinguished the facts in that case from the facts in Flores v. Los Angeles Railway Corp., supra, as follows (pp. 564-565): “But a pedestrian crossing under such circumstances is not under a continuing duty to look to the left; he is only under a continuing duty to use ordinary care. . . . Here the plaintiff did look before leaving the curb, saw no cars coming and heard no horn sounded, and saw other pedestrians crossing to her left, who would naturally tend to slow the progress of any approaching car. She then started across, walking only eight feet, and as she said, ‘the first thing I knew I was knocked down.’ It does not appear that the automobile was in plain sight when she looked; other people crossing the street may have obscured her view of it. At the speed it was going it must have been beyond her clear field of view when she looked. The question whether, under all the circumstances, she was negligent in not looking again to her left while she walked this eight feet is one on which there is room for an honest difference of
Under all the circumstances in this case, whether either the husband or the wife should have looked or listened a second or third time before starting the automobile into the intersection, or when they were in a position to look
The judgment on the order of nonsuit is reversed.
Peters, P. J., and Knight, J., concurred.
Respondent’s petition for a hearing by the Supreme Court was denied May 20, 1946.