GALLUP v. SPARKS MUNDO ENGINEERING CO

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District Court of Appeal, Second District, Division 2, California.

GALLUP et al. v. SPARKS-MUNDO ENGINEERING CO. et al.*

BROWN v. C. O. SPARKS, Inc., et al.

Civ. 19482, 19483.

Decided: November 16, 1953

Parker, Stanbury, Reese & McGee and William C. Wetherbee, Los Angeles, for appellants. Russell H. Pray, William C. Price, Long Beach, and Samuel P. Block, Compton, for respondent Ruth Robbins Gallup. Flaum & Hecker, Beverly Hills, for respondent L. B. Brown.

This appeal is from judgments entered on the verdict of a jury against defendants in two consolidated actions; one for the death of an ambulance driver, son of Ruth Robbins Gallup, and the other for damage to the ambulance owned by plaintiff L. S. Brown, doing business as Arthur Ambulance Service.

The accident out of which these actions arose involved a collision between an ambulance and a tractor and semi-trailer which carried 17 tons of sand over and above the weight of the equipment. The accident occurred at the intersection of Atlantic Avenue and Washington Boulevard in the eastern part of Los Angeles. Washington Boulevard runs east and west, is about 70 feet wide on the east side and about 56 feet wide on the west side. It is marked on both sides for four lanes of traffic, two going in each direction. Atlantic Avenue runs slightly east by northwest and west by southwest, is 60 feet wide and also marked for four lanes of traffic, two going in each direction.

The intersection is controlled by regular tri-light, red, amber and green, signal lights which were in operation at the time of the accident, which occurred at approximately 10:00 p. m., the weather being clear and the streets dry. Visibility was good.

The ambulance was traveling north on Atlantic in the center lane, or northbound lane, adjacent to and east of the double white line, with red lights, of which there were three, and two sirens, one in the grille and one in the unit mounted on top of the ambulance. Also it had headlights. As the ambulance entered the crosswalk the signal for traffic on Atlantic turned yellow. At that time an automobile was headed west on the east side of Atlantic in the lane north of and next to the double center line of Washington Boulevard and was stopped. Behind it, stopped, was a large truck and trailer equipped to haul cattle, some 60 feet long and approximately 12 feet high. The truck and trailer of defendants was overtaking these two stopped vehicles to their right, in the lane nearest the curb on the north side of Washington, also headed west.

The truck entered the intersection at approximately the moment the signal turned from red to green for westbound traffic on Washington Boulevard at a speed of approximately 25 miles per hour, the driver then being in the act of shifting and speeding up. The impact occurred 10 feet north of the center of Washington Boulevard and 8 feet east of the center of Atlantic Avenue, at which point the left front bumper, fender and grille of the truck collided with the right door of the ambulance.

The ambulance driver came to his death as a result of the accident. He had received a telephone call which led to the trip, whereupon he had instructed one attendant to secure straps, and had, in the regular course of business of the ambulance firm, noted upon a small paid in duplicate certain information including the letters ‘AE’ which were shown to be, in accordance with the regular course of business, an abbreviation to indicate that it was an emergency call for the Arthur Ambulance. The original of this slip was taken by the driver and was found fastened to the clip board on the dashboard subsequent to the accident.

The attendant at the Samaritan Institute who placed the call advised merely the fact that he had a patient to be picked up, the name and address and nothing further. Specifically, he had made no statement one way or another as to the condition of the patient or whether it was an emergency call. The manager of the ambulance concern had instructed the driver at the time of his employment, some four months prior to the accident, that all calls from the Samaritan Institute were to be considered as emergency calls unless instructed otherwise. Mr. Woods, the proprietor of the institute had so instructed the manager of the ambulance concern, and the attendant Smith at the Samaritan Institute who made the call which resulted in the trip on which the accident occurred stated it was the practice to call for an ambulance only in those cases which he was unable to handle in his own car. All witnesses who had experience on ambulances, of which there were several, testified that alcoholics frequently were violent and had to be restrained on occasion, and were often handled as emergency calls.

There are the only questions necessary for us to determine:

First: Did the trial court err in refusing to instruct the jury at defendants' request as follows?

‘Section 476 of the California Vehicle Code, in force at the time of the accident in question, provides in part as follows:

“Whenever traffic is controlled by official traffic control signals exhibiting the words ‘Go’, ‘Caution’, or ‘Stop’, or exhibiting different colored lights successively, one at a time, or with arrows, the following colors only shall be used, and said terms and lights shall indicate and apply to drivers of vehicles and pedestrians as follows:

“(a) Green alone for ‘Go’.

“1. Vehicular traffic facing the signal shall proceed straight through or may turn right or left or make a semicircular or U turn unless a sign at such place prohibits any such turn. But vehicular traffic, including vehicles turning right or left, shall yiedl the right of way to other vehicles and to pedestrians lawfully within the intersection or an adjacent crosswalk at the time such signal is exhibited.

“(b) Yellow or ‘Caution’ when shown following the green or ‘Go’ signals.

“1. Vehicular traffic facing the signal is thereby warned that the red or stop signal will be exhibited immediately thereafter and vehicular traffic shall not enter the intersection when the red or stop signal is exhibited.

“(c) Red alone or ‘Stop’.

“1. Vehicular traffic facing the signal shall stop before entering the crosswalk on the near side of the intersection or, if none, then before entering the intersection and shall remain standing until green or ‘Go’ is shown alone.'

‘Should you find that either the driver of the ambulance, Stanley Homer Robbins, or the driver of the truck, Joe Martin Enos, Jr., entered the intersection of Washington and Atlantic Boulevards in violation of the law just read to you, you are instructed that this constituted negligence as a matter of law.’

Yes. If the evidence establishes that plaintiffs' or defendants' violation of a statute or ordinance proximately caused an injury and no excuse or justification is shown by the evidence, responsibility may be fixed upon the violator without other proof of failure to exercise due care. Violation of a statutory requirement is negligence as a matter of law (Satterlee v. Orange Glenn School Dist., 29 Cal.2d 581, 588, 177 P.2d 279; Clinkscales v. Carver, 22 Cal.2d 72, 76 [1b], 136 P.2d 777; Taylor v. Sims, 72 Cal.App.2d 60, 63[1], 164 P.2d 17.)

In the present case the evidence was in conflict as to whether the ambulance entered the intersection against the red light. The ambulance attendant Vandevort testified that when the ambulance arrived at the second line on the crosswalk going north the signal light changed to amber. There was other evidence which would have sustained a finding that the ambulance entered the intersection against the amber light. On the other hand, it was the testimony of Thomas Durbin, an impartial witness, that the ambulance entered the intersection against the red light, and that the truck entered the intersection with the green light. There was thus presented a question of fact for the determination of the jury as to whether or not the ambulance entered the intersection againt the red light. In other instructions the trial court properly left to the jury the question as to whether the ambulance under all the evidence was on an emergency call and therefore exempt from the above quoted provisions of the Vehicle Code. (Head v. Wilson, 36 Cal.App.2d 244, 250, 97 P.2d 509; Coltman v. City of Beverly Hills, 40 Cal.App.2d 570, 572, 105 P.2d 153.)

Had the jury found in accordance with the conflicting evidence that (1) the ambulance was not on an emergency call at the time of entering the intersection, and (2) it had entered the intersection against the red light, then the provisions of section 476 of the Vehicle Code would have been applicable with the result that the ambulance driver would have been guilty of contributory negligence as a matter of law.

Second: Did the trial court commit prejudicial error in instructing the jury as follows?

‘Referring to an intersection at which traffic is controlled by a mechancial device which, operating automatically, directs the traffic to go or to stop, you are instructed as follows:

‘The mere fact that a vehicle enters or crosses such an intersection against a stop signal is not conclusive proof of negligence. This is so because the controlling device may change to give the stop sign either just as a vehicle is entering the intersection or when it is so close that an attempt to stop suddenly would be futile, or would be more hazardous than crossing the intersection, or would be more liable to result in interference with other traffic. The fact that the law recognizes these possibilities, however, does not justify a driver in approaching an intersection at a careless rate of speed. He, too, is bound to know that the signal, being automatic, will not heed his approach and that it may change before he reaches the intersection. The ordinarily careful driver will adjust his speed to that possibility. Failure to obey a traffic signal may or may not be the proximate result of a negligent speed on approach.

‘When there is a question whether a driver was negligent in entering an intersection against an automatic stop signal, all the surrounding circumstances should be considered with a view to judging whether his conduct was justifiable, excusable and in the manner of an ordinarily prudent person.

‘In giving you this instruction, I do not mean to imply, nor to suggest, that either party, involved in the accident in question, did enter the intersection that is under our consideration against a stop signal, or that either party made a negligent approach to the intersection. Whether or not either of those things was done is a question of fact that you must decide.’

Yes. The foregoing instruction was erroneous because it told the jury that the ambulance driver was not necessarily guilty of negligence if he entered the intersection against the stop signal. This is not the law assuming that the jury found the ambulance was not on an emergency call. In such case he would have been guilty of contributory negligence as a matter of law and thus barred from recovery.

In view of our conclusions it is unnecessary to discuss other questions argued by counsel.

The judgments are reversed.

McCOMB, Justice.

MORRE, P. J., and FOX, J., concur.

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