TORRES v. CITY OF LOS ANGELES

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

Edith TORRES, a Minor, by her Guardian ad Litem, Arnulfo Torres, and Arnuifo Torres, Plaintiffs and Respondents, v. CITY OF LOS ANGELES, a municipal corporation, Defendant and Appellant.

Moses BOSKETT and Mattie C. Boskett, Husband and Wife, Plaintiffs and Respondents, v. CITY OF LOS ANGELES, a municipal corporation, Defendant and Appellant.*

Civ. 25094, 25095.

Decided: October 24, 1961

Roger Arnebergh, City Atty., Bourke Jones, Asst. City Atty., Herbert Hargrave and Weldon L. Weber, Deputy City Attys., Los Angeles, for appellant. Dryden, Harrington, Horgan & Swartz, Vernon G. Foster, Zeman, Comsky & Fischer, David Comsky, Los Angeles, for respondents.

Defendant, City of Los Angeles, appeals from judgments for personal injuries and a death caused by an intersection collision of two of defendant's fire engines in which one of them was thrown into Torres' automobile, which in turn was propelled into that of Boskett; both had stopped at the curb to await the passing of the fire equipment.

The engines, designated as Nos. 14 and 22, were answering a fire alarm, were displaying lighted red lights and sounding their sirens as required by Vehicle Code § 454 [now Vehicle Code 1959, §§ 21055, 21056]1 in order to afford them the statutory exemption from the ordinary rules of the road.

No. 14, driven by auto-fireman George W. Winchester, was traveling west on Jefferson Street and engine No. 22 was going north on San Pedro, operated by auto-fireman Raymond W. Reischl. The screaming of the siren on each vehicle prevented its occupants from hearing the other; they did not see each other, thus colliding in the intersection when No. 14 ran into the rear right side of No. 22. The cars of Torres and Boskett were parked close together at the west curb and north of the intersection waiting for the firemen to pass. As an immediate result of the collision one of the engines was thrown into the Torres car, which in turn struck the Boskett vehicle, causing the injuries and death in question.

Appellant advances three causes for reversal: (1) That these were emergency vehicles exempt from ordinary rules of the road and the drivers were not exercising their privileges arbitrarily, hence there could be no liability upon the City; (2) that the court erred prejudicially in refusing a requested instruction to the effect that failure to keep a proper lookout is one of the rules of the road to which the exemption applies; and (3) that each of the verdicts is excessive.

Section 454 reads:

‘The driver of an authorized emergency vehicle shall be exempt from those provisions of this code herein set forth under the following conditions:

‘(a) Said exemptions shall apply whenever any said vehicle is being driven in response to an emergency call or while engaged in rescue operations or when used in the immediate pursuit of an actual or suspected violator of the law, or when responding to but not upon returning from a fire alarm.

‘(b) Said exemptions shall apply only when the driver of said vehicle sounds a siren as may be reasonably necessary and the vehicle displays a lighted red lamp visible from the front as a warning to others. Under the circumstances hereinabove stated, any said driver shall not be required to observe those regulations contained in Chapter 3 or in Chapters 6 to and including Chapter 13 of Division 9 or Section 604 of this code, but said exemptions shall not relieve the driver of any said vehicle from the duty to drive with due regard for the safety of all persons using the highway, nor shall the provisions of this section protect any such driver from the consequences of an arbitrary exercise of the privileges declared in this section.’

The ultimate questions at bar are these: (a) Whether defendant's driver, Reischl, can be said to have arbitrarily exercised the privileges conferred upon him by Section 454; and (b) Whether two fire engines colliding on their way to a fire are outside of the area of the statutory exemption. There is no question that the fire engines were operating as emergency vehicles at the time of the collision.

The complaint in each of these consolidated cases alleges negligence and makes no reference to defendant's vehicles having emergency status or their drivers arbitrarily exercising the exemption pertaining thereto. Engine No. 14, westbound, ran into northbound No. 22. Counsel for plaintiffs developed the facts that the driver of No. 22 did not during the last 100 feet before the intersection look to his right to see if No. 14 was coming from the east; that it was customary in answering fires in that area for him to see No. 14 cross the intersection in front of him; it was contended, though not established, that No. 22 on that morning was able to leave and did leave the station a little more promptly than usual and hence Reischl should not have assumed, as he did, that No. 14 had crossed the intersection when he did not see it there. It was also shown that Reischl's approach to this crossing violated certain departmental rules, which departure, of course, would be some evidence of negligence. Stress was laid in the trial upon Reischl's failure to keep a lookout for intersecting vehicles such as No. 14. All these things go to the matter of common law negligence and that alone is not enough to fasten liability under the statute. Respondents claim, however, that § 400, Vehicle Code [now Vehicle Code 1959, §§ 17000–17003],2 creates municipal liability for negligence of its employees in operating its motor vehicles, that the exemption of § 454 is not a blanket absolution from care, and that liability arises from negligence of the driver of an emergency vehicle where that negligence consists of conduct outside the statutory exemption. This matter will be discussed later. First we seek the guidance of general principles.

The fireman, whatever his culpability, cannot be held personally liable for any personal injury, death or property damage resulting from operation in line of duty of an emergency vehicle when responding to a fire alarm (Veh.Code § 401 [now Vehicle Code 1959, § 17004]), but the municipality is liable for any negligence of that driver which does not fall within the ambit of the statutory exemption of § 454 (see Raynor v. City of Arcata, 11 Cal.2d 113, 121, 77 P.2d 1054; Eddy v. City of Los Angeles, 28 Cal.App.2d 89, 95, 82 P.2d 25); that is to say, that any negligent conduct which consists of arbitrary action on the part of the driver gives rise to liability of the employer, the City.

The decisions hold that arbitrary action which defeats the exemption of § 454 is to be equated with wilful misconduct (Lucas v. City of Los Angeles, 10 Cal.2d 476, 485, 75 P.2d 599; West v. City of San Diego, 54 Cal.2d 469, 474, 6 Cal.Rptr. 289, 353 P.2d 929) in the sense of ‘an act performed either with knowledge that serious injury to another will probably result or with wanton and reckless disregard of the possible consequences' (quoting West, supra, 54 Cal.2d at page 474, 6 Cal.Rptr. at page 292, 353 P.2d at page 932).

The statute is to be strictly construed in favor of the public agency (Raynor, supra, 11 Cal.2d at page 121, 77 P.2d 1054).

The statutory phrase ‘said exemptions shall not relieve the driver of any said vehicle from the duty to drive with due regard for the safety of all persons using the highway,’ ‘does not impose the same quantum of care upon the driver of an emergency vehicle as upon motorists generally, for in that event the requirement would have the absurd result of practically nullifying the traffic exemptions expressly granted by the section. So pertinent is the interpretation of the phrase in Lucas v. City of Los Angeles, 10 Cal.2d 476, at page 483, 75 P.2d 599 at page 603, where it was said: ‘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.' And while the statute does not ‘protect [the] driver from [the consequences of] ‘an arbitrary exercise’ of the privileges' there granted, ‘an arbitrary exercise’ of them ‘cannot be predicated upon the elements of speed and failure to observe other rules of the road where a warning has been given.’ (Raynor v. City of Arcata, 11 Cal.2d 113, 117, 77 P.2d 1054, 1057.) ‘In such cases speed, right of way, and all other ‘rules of the road’ are out of the picture.' (Lucas v. City of Los Angeles, supra, 10 Cal.2d at page 486, 75 P.2d [599] at page 604; see, also, Stone v. City and County of San Francisco, 27 Cal.App.2d 34, 38, 80 P.2d 175.)' Reed v. Simpson, 32 Cal.2d 444, 449–450, 196 P.2d 895, 898.

‘The expression ‘with due regard for the safety’ of all persons using the highway was explained in the Balthasar Case, [Balthasar v. Pacific Elec. Ry. Co., 187 Cal. 302, at page 311, 202 P. 37, 19 A.L.R. 452] where the court said, 187 Cal. 302, at page 311, 202 P. 37, 41, 19 A.L.R. 452: ‘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.' This is the only reasonable interpretation that the statute will bear. 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, supra, 10 Cal.2d 476, 483, 75 P.2d 599, 602.

As to the extent of the exemption, the section does not enumerate the code provisions which the driver of an emergency vehicle is not required to observe; it merely mentions regulations contained in ‘Chapter 3 or in Chapter 6 to and including Chapter 13 of Division 9 or Section 604 of this code.'3

The courts have consistently construed the exemption to embrace ‘the rules of the road applicable to motorists generally.’ Lucas v. City of Los Angeles, supra, 10 Cal.2d 476, 480, 75 P.2d 599, 601. At page 486 of 10 Cal.2d, at page 604 of 75 P.2d Lucas says: ‘Our conclusions from the foregoing are that when the operator of an emergency vehicle responding to an emergency call gives the statutory notice of his approach the employer is not liable for injuries to another, unless the operator has made an arbitrary exercise of these privileges. In such cases speed, right of way, and all other ‘rules of the road’ are out of the picture; the only questions of fact, in so far as the public owner is concerned, are first, whether there was an emergency call within the terms of the statute; second, whether the statutory warning was given; and third, whether there was an arbitrary exercise of these privileges.'

‘But since in the performance of his official duty, the decedent [driver of emergency vehicle] was exempted from the restrictions of ‘speed, right of way, and all other ‘rules of the road,” his lack of due care cannot be predicated on those elements if the ‘reasonably necessary’ warning contemplated by the statute was given.' Reed v. Simpson, supra, 32 Cal.2d 444, 451, 196 P.2d 895, 899.

‘A warning siren having been sounded, negligence of the driver could not be predicated on his rate of speed or failure to obey the ‘Stop’ sign. An authorized emergency vehicle responding to an emergency call is exempt from limitations of speed and other rules of the road, such as those relating to the right of way. The exemption from speed limits and right of way is statutory * * *. The exemption from other rules of the road has been established by judicial decisions, notably by Balthasar v. Pacific Elec. Ry., 187 Cal. 302, 202 P. 37, 19 A.L.R. 452.' Raynor v. City of Arcata, supra, 11 Cal.2d 113, 117, 77 P.2d 1054, 1057. And at page 121 of 11 Cal.2d, at page 1059 of 77 P.2d: ‘It follows from the discussion in the earlier part of our opinion herein that there is a ‘negligent operation’ of an authorized emergency vehicle responding to an emergency call only where the driver of such vehicle fails to give a timely warning, or otherwise makes an ‘arbitrary exercise’ of the exemption from rules of the road which can be said to be willful misconduct.'

Davidson v. County of Marin, 147 Cal.App.2d 54, 60, 304 P.2d 743, 746, approved an instruction that “the giving of the audible signal by siren and the display of a red light visible from the front is the measure of care on the part of the operator of the emergency vehicle, and if this is done his duty of care is performed, subject to the limitation that he may not make an arbitrary exercise of the privileges given him by the exemption,” and said, ‘That the above instruction is a correct statement of the law cannot be doubted.’

Respondents argue that failure to keep a lookout for other vehicles is not within the exemption. Plainly this cannot be so for a lookout is indispensable to determining and exercising right of way as well as regulation speed of the vehicle and complying with certain other rules above mentioned. ‘Despite the clear language of Section 454, appellant argues that even though the fire truck may have given the statutory warning, which would give the driver the benefit of the exemption, he can still be held liable for ordinary negligence for failing to keep a proper lookout. The Supreme Court cases have, however, clearly held to the contrary * * *. In Reed v. Simpson, 32 Cal.2d 444, 196 P.2d 895, 899, it was argued that if the driver of the emergency vehicle was proceeding at a moderate speed, his ‘failure to keep on the lookout and avoid the dangers of traffic, which was concededly heavy at the time, contributed proximately to the fatal collision.’ But the court there stated that since the driver in the performance of his official duty was exempted from the restriction of speed, right of way, and all other “rules of the road”, his lack of due care cannot be predicated on those elements if the ‘reasonably necessary’ warning contemplated by the statute was given.' Davidson v. County of Marin, supra, 147 Cal.App.2d 54, 59, 304 P.2d 743, 745.

‘As the record here discloses, the decedent was obliged to watch the erratic vehicle that he was pursuing down the boulevard, and the jury could well have found him free from negligence even though he failed to observe until too late defendant Simpson's car as it undertook in the middle of the block to turn across the oncoming traffic. Smith v. Aggola, 27 Cal.App.2d 750, 752–753, 81 P.2d 997, and cases there cited. In these circumstances, it is apparent that the trial court's instruction declaring, as a matter of law, that the decedent was ‘not entitled to [the] exemptions' granted by section 454(b) of the Vehicle Code, and that ‘he was required to comply with all traffic rules and regulations to the same extent as the operator of any other motor vehicle then and there on the highway,’ was prejudicial to plaintiffs.' Reed v. Simpson, supra, 32 Cal.2d at page 451, 196 P.2d at page 899.

In McAllister v. Cummings, 191 Cal.App.2d 1, 9, 12 Cal.Rptr. 418, 423, this court said: ‘Appellants also complain of the court's refusal to give a requested instruction upon assumption of risk, i. e., BAJI 207. It is not applicable to the situation existing in this case. Plaintiff is an officer of the law charged with the duty, among others, of pursuing traffic offenders. To facilitate his work the legislature has conferred an emergency exemption from ordinary traffic rules and the right of way over other vehicles while he is engaged in such pursuit of traffic offenders, provided he uses the red lights and the siren as prescribed by statute. Everyone must get out of his way so far as reasonably possible and he is entitled to act upon the premise that they will do so. He does not assume the ordinary hazards of the highway. His situation is analogous to that of the workman on the highway. He is not charged with the duty of constantly looking for traffic while engaged in work which requires his presence there, and failure so to do does not constitute contributory negligence as a matter of law, nor does it spell assumption of risk of injury caused by others.’

At the trial counsel for respondents laid much stress upon Reischl's failure to keep a lookout for the other engine. This they did when taking evidence and arguing the case, one of them saying in argument: ‘I think this is really the guts of the whole case.’ Now they say in their brief: ‘As indicated above, it is not respondents' theory that the driver failed to keep a proper lookout, but that he proceeded knowingly into the path of another emergency vehicle whose approach he anticipated, without having his vehicle under control, with complete indifference to its approach, and in direct violation of the very rules of his own fire department designed to avoid such an accident.’ This they claim to constitute arbitrary exercise of the statutory exemption from the rules of the road.4 But it will be observed that the matters mentioned in respondents' quoted theory go to matters of speed, failure to keep a lookout for others and violation of rules of the fire department. Violation of those rules does not constitute negligence per se but merely evidence of common law negligence. Cf. Gett v. Pacific G. & E. Co., 192 Cal. 621, 625, 221 P. 376; Powell v. Pacific Electric Railway Co., 35 Cal.2d 40, 46, 216 P.2d 448. Speed (Lucas v. City of Los Angeles, supra) and keeping a lookout (Davidson, supra) fall within the category of rules of the road which are exempted.

Essentially this position of respondents is a claim that Reischl's assumption that the other engine had crossed the intersection ahead of No. 22 spells arbitrariness on his part. However, as shown above, the arbitrary exercise of the exemption privilege must amount to something in the nature of wilful misconduct and the things stressed by respondents do not measure up to that criterion. In fact, there is no evidence that Reischl proceeded knowingly in the path of another vehicle whose approach he anticipated; on the contrary, he assumed that No. 14 had passed the intersection and he was not expecting to cross its path in advance of it. His vehicle was under control at all times until No. 14 hit it and threw it against the Torres automobile. The evidence does not support the contention that No. 22 left the fire station faster than usual or that No. 14 was later. On each occasion when they had approached the particular intersection in answering fire alarms, Reischl had seen No. 14 cross it when he was near Santa Barbara Avenue, from 1300 to 1500 feet away. On this occasion when he did not see it he inferred that it had already crossed and there was no reason for him to believe it was late; he did not know that he was early, if indeed such was the case; and it is only supposition that lies at the basis of the claim that he should have known those things which counsel mistakenly assume to have been proved. We have here nothing done or omitted ‘with knowledge that serious injury to another will probably result or with wanton or reckless disregard of the possible consequences' (West, supra, 54 Cal.2d at page 474, 6 Cal.Rptr. at page 292, 353 P.2d at page 932).

Respondents assert that the statutory exemption is intended merely ‘to provide ‘a clear and speedy pathway’ for these municipal vehicles on their flights to emergencies in which the entire public are necessarily concerned' (quoting Peerless, supra, 109 Cal.App.2d at page 707, 241 P.2d at page 272). They also argue that § 454 does not afford any exemption to two fire engines engaged in answering the same fire alarm; this is a claim which must be approached with caution, as is emphasized in Lucas, supra, 10 Cal.2d at page 485, 75 P.2d at page 604: ‘These ‘privileges' are granted by the legislature and are not to be determined by the court or jury. If by judicial decree the nonarbitrary exercise of these privileges may be declared to be negligence, then the whole purpose of the statutes is lost and the private opinions of the jurors are substituted for the solemn determination of the legislature upon a subject which is clearly one which that body may determine in its discretion. It has always been the law that, when a subject-matter is purely legislative, the courts will not decry the wisdom or policy of the enactment because they are not in accord with the views of the lawmaking body. This fixed policy of the courts may not be set aside indirectly by declaring that there was some question of fact involved before the jury, or that there was some conflict in the evidence.’

Respondents' contention is adequately refuted by the decision in Coltman v. City of Beverly Hills, 40 Cal.App.2d 570, 105 P.2d 153, an action for wrongful death. Decedent was on the sidewalk when two city vehicles operated by police officers collided at a street intersection while responding to an emergency call; one of the vehicles hurtled onto the sidewalk, pinned Miss Coltman against a building and injured her in such manner as to cause death. The siren of each vehicle was being sounded and the driver of each testified that the sounding of his own siren prevented his hearing the noise made by the one on the other vehicle. ‘As they approached the intersection all visible traffic was standing still. As the automobile and the motorcycle collided in the intersection the two sirens blended so that the driver of neither vehicle could hear the siren on the other.’ 40 Cal.App.2d at page 572, 105 P.2d at page 154. At page 573 of 40 Cal.App.2d, at page 154 of 105 P.2d the court said: ‘A complete answer to appellants' contention that the evidence is insufficient to warrant the finding that the police vehicles were being driven with due respect to the safety of all persons using the highway is to be found in the decision in Lucas v. City of Los Angeles, 10 Cal.2d 476, 75 P.2d 599, a decision that is controlling in the present litigation * * *. ‘In such cases, speed, right of way, and all other ‘rules of the road’ are out of the picture; the only questions of fact, in so far as the public owner is concerned, are first, whether there was an emergency call within the terms of the statute; second, whether the statutory warning was given, and third, whether there was an arbitrary exercise of these privileges.' In the case now under review the three questions of fact enumerated in the Lucas decision have all been resolved in favor of defendant city by the trial court, which based its findings upon sufficient evidence.' While the court did not discuss the contention now advanced by respondents herein, an examination of the briefs in that case reveals that substantially the same arguments were there presented and necessarily rejected by the court in exonerating the city from liability; the Supreme Court denied a hearing. In the light of these briefs the Coltman decision seems to us to be conclusive.

If more authority were needed it would be found in the relationship of § 454 and § 554, the latter of which requires the ‘driver of every other vehicle’ to yield the right of way to an emergency vehicle which is sounding a siren and has at least one lighted lamp visible for 500 feet ahead. § 454 says that another emergency vehicle is exempt from compliance with this section and so neither emergency vehicle has the right of way over the other.

Citing the Coltman case as authority, Blashfield's Cyclopedia of Automobile Law and Practice, Permanent Edition, Volume 1, Part 2, at page 730, says: ‘In an action for a third person's injuries or death resulting from a collision between two emergency vehicles, where it appears that both vehicles were responding to an emergency call, that warnings were properly given, and that there was no arbitrary exercise of statutory privileges, no recovery can be had.’

Respondent relies upon Peerless Laundry Services v. City of Los Angeles, supra, 109 Cal.App.2d 703, 241 P.2d 269, a case in which the driver of the fire engine had defective brakes, lost control of the vehicle and crashed into plaintiff's building at the corner of an intersection. At page 707 of 109 Cal.App.2d, at page 272 of 241 P.2d the court says:

‘The accident is difficult to explain otherwise than on the theory that the driver while making his turn on Slauson looked to the east, as he testified, in an attempt to view other pieces of fire apparatus preceding him, and that in doing so he relaxed his vigilance over the progress of his own vehicle for too long a period. This coupled with defective brakes caused the collision with respondent's building. Such conduct could properly be found to be negligence and not the result of a disregard of any regulation as to which the driver is granted immunity be section 454.

‘Moreover, respondent's argument that section 454 was never intended to have application to a situation such as is here presented appears to be sound. * * * Screaming sirens and flashing red lights could in no way have given respondent an opportunity to protect its property or to avert the crash which resulted. Appellant's construction of section 454 would operate to give emergency-bound vehicles free rein to speed in disregard of persons and property so long as the statutory warnings are given. Such interpretation certainly could not reasonably have been the legislative intent in drafting the statute.’

True, the Supreme Court denied a hearing, but that does not connote adoption of the reasoning or the legal principles announced by the District Court of Appeal, merely the conclusion reached by it. See Bohn v. Bohn, 164 Cal. 532, 537–538, 129 P. 981; Western L. Co. v. State Bd. of Equalization, 11 Cal.2d 156, 167–168, 78 P.2d 731, 117 A.L.R. 838; Cole v. Rush, 45 Cal.2d 345, footnote 3 at page 351, 289 P.2d 450, 54 A.L.R.2d 1137. While the Peerless decision must be accepted as correct in its disposition of the facts there presented, we cannot, in the face of the caution sounded in Lucas v. City of Los Angeles, supra, 10 Cal.2d at page 485, 75 P.2d 599, above quoted, adopt it as authority for the proposition that the exemption prescribed by § 454 does not include two fire engines engaged in answering the same fire alarm. On the contrary, we deem Coltman v. City of Beverly Hills, supra, 40 Cal.App.2d 570, 105 P.2d 153, to be controlling at bar. We cannot permit the fact that this makes a ‘hard case’ from plaintiffs' standpoint divert us from following and applying the existing precedents.

Cavagnaro v. City of Napa, supra, 86 Cal.App.2d 517, 195 P.2d 25, is also stressed by respondents as persuasive authority. Though the Supreme Court denied a hearing in that case we think the District Court opinion misinterprets and then ignores the authoritative explanation of the statutory phrase, ‘to drive with due regard for the safety of all persons using the highway’ as found in Lucas v. City of Los Angeles, supra [10 Cal.2d 476, 75 P.2d 601] (later reiterated in Reed v. Simpson, supra), and we cannot follow it as a persuasive precedent here.

The trial judge evidently sanctioned respondents' position on this matter. In ruling upon the motion for non-suit the court said: ‘Yes, I think the only question for the jury to determine is, as I say, whether this is outside the exemption because of the past history and the knowledge of the driver of this car, the other emergency vehicle * * *.’ Later, without defining his phrase ‘outside the exemptions contained in Section 454’ he instructed the jury, apparently on his own motion, as follows: ‘If you find that the accident in question was the direct and proximate result of an act of one or more firemen and that such act was outside the exemptions contained in Section 454 of the Vehicle Code, then you must determine this issue: Was this act that proximately caused the accident a negligent act under the instructions and definition of negligence that I have given you?’ This left the jurors to determine for themselves the validity of respondents' claim that the section does not apply to two fire engines and their momentary relationship to each other. The instruction just quoted was prejudicially erroneous.

Likewise prejudicial was the court's rejection of defendant's proffered instruction No. J which reads:

‘You are instructed that under the provision of Section 454 of the Vehicle Code, the driver of an emergency vehicle is exempted from the restrictions of speed, right of way and all other rules of the road.

‘You are further instructed that the failure to keep a proper look out is one of the rules of the road to which the exemption applies.

‘If, therefore, you should find that the proximate cause of the injuries to plaintiffs in the within case resulted from the failure to keep a proper look out by the drivers of the emergency vehicles, you may not base any liability on the part of the defendant, City of Los Angeles, on that alone.’

This is a correct statement reflecting defendant's theory upon one of the cardinal phases of the case, none of the instructions given directly touched upon this particular matter, and defendant was entitled to have its request given. Leming v. Oilfields Trucking Co., 44 Cal.2d 343, 352, 282 P.2d 23, 51 A.L.R.2d 107; Daniels v. City & County of San Francisco, 40 Cal.2d 614, 623, 255 P.2d 785.

For the foregoing reasons the cause must be reversed; therefore it would be a work of supererogation to examine the claim of excessive verdict in favor of each of the plaintiffs.

Defendant undertakes in each case to appeal from the order denying its motion for new trial and the order denying its motion for non-suit. Those orders are not appealable (Rodriguez v. Barnett, 52 Cal.2d 154, 156, 338 P.2d 907; In re Estate of Roberson, 114 Cal.App.2d 267, 268, 250 P.2d 179) and the attempted appeals therefrom are dismissed.

The judgment is reversed in each case.

FOOTNOTES

1.  All statutory references herein are to the Vehicle Code as it existed at the time of the accident, June 1, 1958.

2.  Section 400 of the Vehicle Code Reads as follows: ‘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 may sue the State, county, city and county, municipal corporation * * * as the case may be, in any court of competent jurisdiction in this State in the manner directed by law. In every case where a recovery is had under the provisions of this section against the State, any county, city and county, municipal corporation * * * then the State, or the county or city and county, municipal corporation * * * shall be subrogated to all the rights of the person injured, against the officer, agent or employee, as the case may be, and may recover from such officer, agent or employee, the total amount of any judgment and costs recovered against the State, county, city and county, municipal corporation * * * in such case, together with costs therein. ‘And the State, county, city and county, municipal corporation * * * may insure their liability in any insurance company authorized to transact the business of such insurance in the State of California, and the premium for such insurance shall be a proper charge against the respective general fund of the State, county, city and county, municipal corporation * * * as the case may be.’

3.  Section 604 [now Vehicle Code 1959, § 21653] prohibits driving the wrong way on a one way street but is made inapplicable to emergency vehicles. Division 9 [now Vehicle Code 1959, § 21000 et seq.], which is captioned ‘Traffic Laws', prescribes the following regulations which are made inapplicable to emergency vehicles by § 454:

FOOTNOTE.  FNChapter 3: § 475, requiring obedience to traffic signals. Chapter 6: § 510, requiring observance of the basic speed law. Chapter 7: § 525, requiring driving on the right side of the highway; § 526, prescribing method of driving on roadways laned for traffic; § 527, on passing to the right; § 528, requiring overtaking vehicle to pass to the left; § 529, permitting overtaking another vehicle on the right under certain conditions; § 530, limitations on overtaking on the left; § 531, following too closely; § 531.2, prohibiting any vehicle other than an emergency one from following an emergency vehicle within 300 feet; § 533, duties upon meeting or passing school bus. Chapter 8: § 540, prescribing required position and method of turning at intersections; § 541, restrictions on U-turns; § 543, re backing vehicle on highways; § 544, re turning to right or left on highway; § 545, signals to be given by hand and arm or signal device; § 546, method of giving signals. Chapter 9: § 550, prescribing right of way at intersection; § 551, re turning left at intersection; § 552, method of entering through highways; § 554, yielding right of way to emergency vehicles. Chapter 10: § 560, giving pedestrians right of way at crosswalk; § 560.1, giving them right of way on sidewalks. Chapter 11: § 570, re passing street car on the left; § 571, passing standing street cars; § 572, driving through safety zones. Chapter 12: § 575, requiring obedience to signal indicating approach of trains; § 577, requiring stop before entering through highway. Chapter 13: § 582, re stopping or parking on highway; § 587.5 re interference with fire department vehicles.

4.  Several decisions mention factual situations that may be held arbitrary exercise of the exemption. For instance, the Lucas case, supra, says at page 484, of 10 Cal.2d, at page 603 of 75 P.2d: ‘To the instances there noted where this limitation might apply could be added one where the operator has given the required warning but sees that another has not heard or heeded it; under those circumstances it might be an arbitrary exercise of the privileges to continue on into an inevitable collision.’ Reed v. Simpson, supra, says at page 451 of 32 Cal.2d, at page 899 of 196 P.2d: ‘* * * where ‘such driver’ has given a ‘reasonably necessary’ warning but sees that it has not been observed or heeded, and having opportunity to stop, he nevertheless continues on into an inevitable collision.' Davidson, supra, 147 Cal.App.2d at pages 60–61, 304 P.2d 743, recognizes failure to exercise last clear chance as a basis for finding arbitrary conduct. Peerless Laundry Services v. City of Los Angeles, 109 Cal.App.2d 703, 707, 241 P.2d 269 and Cavagnaro v. City of Napa, 86 Cal.App.2d 517, 523, 195 P.2d 25, place defective brakes in this category. Eddy v. City of Los Angeles, supra, 28 Cal.App.2d 89, 91, 82 P.2d 25 stresses absence of a siren on a vehicle. West v. City of San Diego, supra, 54 Cal.2d 469, 474, 6 Cal.Rptr. 289, 353 P.2d 929 recognizes that speed may or may not amount to an arbitrary exercise of the exemption privilege, depending upon attendant circumstances. None of these situations existed in the present instance and it is a dangerous process to reason from one set of facts to another set.

ASHBURN, Justice.

FOX, P. J., and HERNDON, J., concur.