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District Court of Appeal, Third District, California.


Civ. 5553.

Decided: March 03, 1937

Blaine McGowan, of Eureka, for appellant. E. S. Mitchell, of Eureka, for respondent.

A jury awarded plaintiff $5,000 against the City of Arcata for damages sustained by reason of the negligent operation of an automobile belonging to the city fire department and operated by the chief while responding to an alarm of fire.

Plaintiff was a salesman employed by the United States Rubber Company. He was proceeding southerly along the Redwood highway at 5:30 o'clock in the afternoon of a day in March, 1933, and at the intersection of Sixteenth street and the Redwood highway in the City of Arcata, he was struck by the car of the fire chief and suffered injury.

At about 5:30 o'clock of that afternoon an alarm of fire was turned in from an alarm box within the city limits of the City of Arcata. The fire chief was at his home about five blocks from the intersection of Sixteenth street and the highway. When the alarm was sounded he got in the chief's car, which was a Ford, painted red and equipped with the standard type of siren. He lighted the red emergency light on the front of the car and started for the fire, traveling in excess of 50 miles an hour, although he slackened speed somewhat as he approached the intersection. At the same time plaintiff was traveling between 15 and 20 miles an hour along the highway which was posted as a boulevard or arterial street. He testified he heard no siren or other warning and looked both to the right and left before entering the intersection, but saw no cars approaching.

A witness, immediately following plaintiff's car, testified plaintiff was in the intersection when the red car of the fire chief, traveling at approximately 50 miles an hour, flashed in view and struck the car of plaintiff. This witness heard no siren or other warning. Several other witnesses testified they heard the siren, and others who were in an equally favorable position to have heard the siren, testified they did not hear any warning of any kind whatever.

As the result of the collision plaintiff was bruised and suffered severe nervous shock, and at the trial, some two years after the accident, testified he was still suffering from the effects of the accident with severe headaches and nervous instability, which made it impossible for him to perform as efficiently the work he had previously done.

Appellant contends the verdict is against the evidence and not supported by the evidence, that plaintiff was guilty of contributory negligence, and that the court erred in instructing the jury.

We need not set forth in great detail the testimony which would tend to support the verdict of the jury. An examination of the transcript shows that the plaintiff testified as to what occurred at the scene of the accident and the injuries which he sustained. Imogene Platt, registrar of Humboldt State Teachers College, who was at the scene of the accident when it occurred, testified as to facts which fully supported all the allegations of the complaint. Wilfred Brown, who was in a car at the intersection when the collision occurred, likewise testified for the plaintiff, as did Mrs. Jenkins and Mr. Danielson, who testified as to the location of the cars at the time in question, and the damage to the car of plaintiff. Mrs. Raynor, the wife of plaintiff, also testified as to the injuries suffered by plaintiff and its effect upon his health and ability to transact his business affairs.

It is claimed by appellant that inasmuch as the fire was actually burning outside of the boundaries of the City of Arcata, the chief was not then in the performance of his duties and the city therefore was not liable. However, the alarm was sounded from a box within the city and the chief testified that it was his duty to respond to a fire alarm sounded within the City of Arcata. It is also, without doubt, the duty of the fire chief to be at hand to protect property within the city, even conceding that the fire was burning across the line and outside of the city limits.

It is also argued that the chief had the right of way at the intersection. While it is a fact that the driver of a fire car is not restricted to a maximum speed at which they may be driven, it is held in City of Sacramento v. Hunger, 79 Cal.App. 234, 249 P. 223, such cars may not be driven with absolute indifference to others legitimately using such streets or with reckless disregard of the lives and property of others, and the operators of such vehicles are not relieved from the duty of exercising the proper degree of care when operating such vehicles over and along the streets of the city. As a matter of fact, inasmuch as such public automobiles are permitted to operate at an unlimited speed, a greater amount of care is required than in those cases where the speed of the motor vehicle is fixed by law. The Hunger Case also holds that where there is evidence that the siren of the fire car was sounded, and there is no direct evidence that plaintiff heard the siren at any time before the accident, he denying having heard the same, the question whether he did hear the same is one of inference to be drawn by the jury from all the evidence in the case.

We do not believe we need consider at length the point raised by the defense that there is no proof that the injuries of plaintiff were the result of the accident. There was testimony both by plaintiff and by his wife that he had sustained injuries, and upon this evidence the jury, having found as a fact that injuries were sustained, is binding upon this court.

We have also examined the instructions refused, but which appellant claims the court should have given, but in comparing the instructions refused with the instructions given, we find that the principles set forth in appellant's instructions and refused, were fully covered in other instructions which were given.

Some point also was made of the fact that the claim filed with the City of Arcata by plaintiff prior to the institution of the suit, was defective and was not filed within time. This question was not presented to the lower court, either by way of pleading or by appropriate motion, and being in the nature of a statute of limitation, cannot for the first time be raised on appeal. McDonald v. Bear River, etc., Mining Co., 13 Cal. 220; Eucalyptas Growers Association v. Orange County Nursery & Land Co., 174 Cal. 330, 163 P. 45; Halstead Lumber Co. v. Security Title Insurance & Guarantee Co., 116 Cal.App. 679, 3 P.(2d) 52.

Finding no error, the judgment must be affirmed, and it is so ordered.

Mr. Presiding Justice PULLEN delivered the opinion of the court.

We concur: THOMPSON, J.; PLUMMER, J.

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