FENNESSEY ET AL v. PACIFIC GAS ELECTRIC CO ET AL

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District Court of Appeal, First District, Division 1, California.

FENNESSEY ET AL. v. PACIFIC GAS & ELECTRIC CO. ET AL.

Civ. 11598.

Decided: August 27, 1941

Thos. J. Straub, W. H. Spaulding, and John J. Briare, all of San Francisco, for appellants. John J. Taaffe, George B. Harris and P. J. Murphy, all of San Francisco, for respondents.

Appeal by defendants Pacific Gas and Electric Company, a corporation, and Thomas Foley, one of its employees, from a judgment rendered following a jury's verdict in favor of plaintiff Irene Fennessey for damages for personal injuries. Mrs. Fennessey's husband died prior to the trial of the action. Defendant George L. Manecis, the driver of a jitney, as the result of a collision with which plaintiff's injuries were sustained, defaulted and judgment was taken against him.

The accident occurred on the south side of Market street just west of Tenth street in San Francisco, where Foley had parked a company truck between the south curb and a safety zone for the purpose of cleaning, servicing and doing repair work to street lighting fixtures owned by the city and county of San Francisco. The work as performed involved the use of a “tower” truck and it is admitted that in its position near the curb there was insufficient space for eastbound traffic to pass between it and the safety zone. Defendant Manecis, proceeding east on Market street, passed the truck by driving his automobile, which he was using as a jitney bus, to the left (north) of the safety zone, along the street–car tracks. Mrs. Fennessey was standing in or very near the marked pedestrian lane which crosses Market street at Tenth street, when she was hit by the Manecis car.

The main contentions of appellants are that the evidence proves as a matter of law that at the time of the accident they were engaged in “emergency” work within the meaning of a municipal ordinance, but that, assuming negligence on their part, the evidence fails to show that such negligence was a proximate cause of the accident. In regard to the latter contention, it is their theory that the act of the jitney bus driver broke the chain of causation between any negligence in parking the truck and plaintiff's injuries.

Section 138 of the Motor Vehicle Act (now section 586 of the Vehicle Code of 1935, St.1935, p. 191) and Article V, section 35 (now section 76), San Francisco Traffic Ordinance, are substantially to the same effect, namely, the prohibition of parking between a safety zone and an adjacent curb. Appellants contend that section 8, Article II of the Traffic Ordinance contains an exception in favor of public utilities “while the driver of any such vehicle is engaged in the necessary performance of emergency duties.” Our attention has not been called to a definition of the word “emergency” in the traffic ordinance.

In Fennessey v. Pacific Gas & Electric Co., 10 Cal.2d 538, 540, 76 P.2d 104, 105, on a former appeal in this case, the court held that “The parking of the truck between the safety zone and the curb was a violation of state law and municipal ordinance * * * in force at the time of accident * * * unless it was ‘engaged in the necessary performance of emergency duties.’ ”

The word “emergency” as used in legislative enactments does not always have precisely the meaning ascribed to it by lexicographers. Huff v. City of New York, 202 App.Div. 425, 195 N.Y.S. 257. It may be defined by the statute or ordinance. If so, an interpretation thereof must be confined to and limited by such definition and the subject matter enacted. The law governing this question indicates that “emergency” has reference to a method adopted as an expedient for meeting a situation which ordinarily calls for immediate action. Mason v. Crawford, 17 Cal.App.2d 529, 62 P.2d 420. The evidence shows that to keep the lights on both sides of Market street reasonably serviced and in repair requires more than a month's continuous work, going from pole to pole. Admittedly the work which Foley was doing, or was expected to do, upon the fixtures, was routine in nature and was not unforeseen, unexpected or the correction of a condition which had suddenly arisen.

Appellants requested an instruction which first quoted a part of the ordinance and then proceeded as follows: “Therefore, if you believe from the evidence that, at or about the time of the accident in question, the said Thomas Foley was engaged in work involving the maintenance of the street lamps as an employee of the Pacific Gas and Electric Company, then I instruct you that in that event the defendants Thomas Foley and Pacific Gas and Electric Company were not guilty of any negligence and your verdict must be for those defendants and against the plaintiff.” The instruction was refused with the notation “no evidence of the existence of any emergency.” The refusal of this instruction must be approved. The repair vehicle was not used in responding to an emergency call, nor was it parked as the result of its arrival at the scene of an “emergency.” It was simply engaged in its normal daily routine of cleaning and repairing street light fixtures.

The fact that the method employed in servicing was the most practical that could be used, or that appellant company had a contract with the city to perform the work, can play no part in the determination of the question. The record does not disclose any designated means or method to be used in performing the work. The contract could not justify the violation of a parking law except upon the theory that the servicing performed by appellants was an “emergency”, which, as we have just said, was not the case. Until a legislative body in the exercise of its authority reframes an ordinance or statute excepting from the law prohibiting parking between a safety zone and an adjacent curb, vehicles engaged in the performance of routine work on behalf of a governmental agency, appellants are without remedy.

Whether the parking of appellants' repair truck between the safety zone and the curb had anything to do with the swerve or turn of the jitney bus on to the first or second street car tracks, as the result of which the accident occurred, or whether the jitney driver could have averted such accident, notwithstanding that he violated the ordinance prohibiting driving to the left of a safety zone, were purely questions of fact to be determined by the jury. If the jury believed the evidence in support of respondents' theory that the parking of appellant company's car was a proximate cause of the accident, we are unable to interfere. Mecchi v. Lyon Van & Storage Co., 38 Cal.App.2d 674, 104 P.2d 26; McKay v. Hedger, 139 Cal.App. 266, 34 P.2d 221; Gett v. Pacific Gas & Electric Co., 192 Cal. 621, 221 P. 376; Winsky v. De Mandel, 204 Cal. 107, 266 P. 534; Wright v. Los Angeles Ry. Corp., 14 Cal.2d 168, 93 P.2d 135, Hurtel v. Albert Cohn, Inc., 5 Cal.2d 145, 52 P.2d 922. In Lacy v. Pacific Gas & Electric Co., 220 Cal. 97, 98, 29 P.2d 781, 782, the court said: “The authorities in this state hold that where the original negligence continues and exists up to the time of the injury, the concurrent negligent act of a third person causing the injury will not be regarded as an independent act of negligence, but the two concurring acts of negligence will be held to be the proximate cause of the injury.” Rae v. California Equipment Co., 12 Cal.2d 563, 86 P.2d 352; Taylor v. Oakland Scavenger Co., Cal.Sup., 110 P.2d 1044.

The judgment is affirmed.

WARD, Justice.

PETERS, P. J., and KNIGHT, J., concurred.