REED v. SIMPSON (1948)

In their action for the wrongful death of their husband and father a jury denied recovery to plaintiffs. From the judgment entered upon the verdict they appeal upon the ground that they were prejudiced by certain instructions.

Deceased and his companion, Ralph Fritsche, were officers of the Highway Patrol and as such were assigned to oversee traffic on Sunset boulevard near the city limits of Los Angeles, May 18, 1944. The boulevard extends west from the city's center to the Pacific ocean. To the north of Sunset at about 200 feet east of La Cienega Boulevard lies the driveway to a night club. Kings Road enters Sunset about three blocks east of the club's driveway.

In the course of prosecuting their official duties as they traveled eastward at about 11:20 p. m. when about three blocks east of the driveway, they observed an automobile going west, oscillating over the center line. The traffic was heavy and proceeded at about 35 miles an hour. The boulevard was well lighted and the weather was clear. An unlighted automobile could be seen for a half or three quarters of a block. In order to apprehend the offending motorist Reed turned west and after a few cars had passed Fritsche followed at about 150 or 200 feet behind his companion who drove in the lane of traffic adjacent to the center line. Fritsche estimated Reed's speed at about thirty five miles an hour and observed him driving the three blocks they travelled behind the eccentric vehicle. While the officers were thus proceeding, respondent Simpson coming from the west in a large automobile arrived at the club driveway into which he purposed to turn. To do so it was necessary for his car to cross the north lanes of Sunset and the stream of westbound traffic. As he was in the act of making the left turn the motorcycle crashed the right side of the automobile rendering Officer Reed unconscious. The machine then stood with its two front and left rear wheels north of the center line and its right rear wheel to the south thereof. Simpson was accompanied by three guests, one man and two women. Each of them testified that the Simpson machine stopped before attempting to head northward. They were contradicted by the witness Weber who observed the accident from the kitchen of his apartment. He had seen the vacillating vehicle coming west followed by Officer Reed about four car lengths behind when suddenly the Simpson car, going at a speed of between ten and fifteen miles an hour, made a left turn in the center of the boulevard opposite the driveway and collided with the motorcycle of deceased. He saw the white light of the stricken motorcycle and witnessed someone's turning off its red light after it had fallen.

Respondent Simpson testified that after stopping to make his left turn, he allowed three or four cars to pass, and that after a Buick had gone by he began his left turn as the nearest westbound car was about 150 feet away; that he did not see Reed's motorcycle before commencing the turn; that he did not stop again until the crash. The headlights on his car were visible several blocks in the absence of intervening traffic. Fritsche did not see the vehicles collide. On arriving at the point of the collision he observed that Reed and his motorcycle were on the right side of Simpson's car and that the rear wheel of the motorcycle was at the front wheel of the automobile and in the ten-foot lane north of and adjacent to the center. There were no marks on the pavement left by the officer's motorcycle, nor was there any testimony that its siren had sounded. The witness Howard testified that he lived across from the club; that on hearing the noise he went at once to the scene, saw the red light on Reed's motorcycle burning and turned it off. Reed never regained consciousness and expired at six o'clock the following morning.

Six instructions are assigned as prejudicially erroneous. The first is as follows: ‘The motorcycle which the deceased, Officer Reed, was riding at the time of the collision in question was an authorized emergency vehicle. The driver of an authorized emergency vehicle is exempt from certain traffic laws if (1) he is in the immediate pursuit of an actual or suspected violator of the law; (2) he sounds a siren in a way that is reasonably necessary to give warning of his approach to others; and (3) at night his vehicle is equipped with at least one lighted lamp displaying a red light to the front. In this case the evidence shows that there were others on said street and that Officer Reed did not sound his siren at all; therefore he was not entitled to exemptions above mentioned and 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. (Given at Court's own motion.)’

The statute involved in this discussion, section 454 of the Vehicle Code, was enacted for the protection of municipalities and their officers who operate emergency vehicles against liability for damage caused when the vehicle ‘is being * * * used in the immediate pursuit of an actual or suspected violator of the law.’ The part pertinent is as follows: ‘(b) Said exemptions shall apply only when the driver of said vehicle sounds a siren as may be reasonably necessary as a warning to others and at night time when the vehicle is equipped with at least one lighted lamp displaying red light to the front. Under the circumstances hereinabove stated, any said driver shall not be required to observe those regulations contained in Chapters 6 to and including Chapter 13 of Division IX 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.’

A fair construction of the first sentence of subsection (b) is that the exemption shall apply only when the driver sounds a siren as a warning to others and then only when he deems it reasonably necessary so to do. The legislature could not have intended that before he is to be exempt an operator of such emergency vehicle must in every situation proceed along a boulevard screeching to the terror of the inhabitants although the violator he pursues may be miles away and there is only one motorist on the highway of his route. The construction adopted by the trial court operates a forfeiture of the exemption as a matter of law, whereas it was intended that the officer might determine when it is ‘reasonably necessary.’ Therefore it was a fact to be determined by the jury whether the sounding of the siren was reasonably necessary. Isaacs v. City and County of San Francisco, 73 Cal.App.2d 621, 626, 167 P.2d 221.

However, the error embodied in the erroneous construction of section 454(b) cannot avail appellants. They concede that during the pursuit by decedent of the erratic car the traffic was heavy on Sunset boulevard and that no siren was sounded by him. If the siren had sounded all traffic would presumably have halted by the curb. The latter portion of subsection (b) specifically deprives the operator of an emergency vehicle of the exemption provided unless he shall ‘drive with due regard for the safety of all persons using the highway.’ If he was traveling at 60 miles an hour, as some witnesses testified, his excessive speed and his failure to sound his siren contributed proximately to cause the accident; and if he was proceeding at 35 miles an hour as other testimony indicates, his failure to keep on the lookout and avoid the dangers of traffic contributed proximately to his tragic end. Also, if he had sounded his siren Simpson would not have turned. ‘In no instance shall the drivers of emergency vehicles be absolved of the duty to drive with due regard for the safety of all persons using the highway.’ Russell v. Smith, 12 Cal.App.2d 399, 401, 55 P.2d 562, 564.

Appellants list four instructions, A, B, C and D, as erroneous in that they were ‘extremely argumentative and could only lead the jury to think the court felt deceased was negligent.’ They follows:

(A) ‘You are instructed that the fact, if you find it to be a fact, that the deceased approached the point of the accident under circumstances and conditions which ordinarily might have given him the right-of way, did not give him the right to proceed without exercising reasonable care to look for vehicles then and there on the highway.’

(B) ‘You are instructed that the operator of a vehicle upon a public highway, including a highway motorcycle patrolman in the operation of a motor vehicle under the evidence in this case, is required at all times to exercise his faculties of hearing and seeing for the purpose of ascertaining whether or not he can proceed in safety. He cannot negligently proceed into a situation of danger and thereby proximately produce an accident, and yet have his heirs recover damages for his death resulting therefrom.

‘Thus, in this case, if you find from a preponderanced of the evidence that Officer Reed, as he approached the point where the accident occurred, negligently failed to make use of his faculties so as to observe the condition of the traffic, and particularly whether or not the vehicle of the defendant turned in front of him, and if you further find that because of such negligent failure on his part he proximately contributed to the happening of the accident, then plaintiffs cannot recover, and this is true even though you find the defendant Simpson to have been also negligent.’

(C) ‘You are instructed that the question of whether or not Officer Reed at any time before the accident observed the vehicle of the defendant, or its lights, is one upon which we can have no direct evidence because of the death of Officer Reed. Therefore, if it becomes necessary in your deliberations to determine this issue of fact, you will have to determine it by indirect evidence. In so doing you may take into consideration the physical facts indicated by the damage to the two vehicles, the presence or absence of any marks indicating an attempt or lack of attempt on the part of Officer Reed to stop his vehicle, the physical evidences indicating the speed at which the two vehicles came together, and such other physical evidence and facts in evidence as may be proven to your satisfaction.’

(D) ‘In determining the question of the speed at which the motorcycle was being driven by Officer Reed you are to take into consideration not only the direct evidence, but also the indirect evidence on that issue. Eye witness evidence of such speed is but the opinion or conclusion of the witness with reference thereto, and you are to weigh it for what it is worth. You may also consider the evidence of the damage to the Cadillac automobile, the character of the vehicle, as to whether it was large or small, and the comparative weights or sizes of the two vehicles as indicated by the evidence and by the pictures. The determination of what the speed probably was is an issue of fact for you to decide after a consideration of all of the evidence.’

Appellants contend that A is argumentative; also that it assumes (1) that deceased proceeded without exercising reasonable care and (2) that the Simpson car was ‘then and there directly in front of him.’ It is true that A assumes that there were ‘vehicles then and there on the highway’; but upon that subject there was no dispute. Appellants say in their brief that the traffic was heavy and ‘all of it was moving at a speed of about 35 to 36 miles an hour.’ The trial court performs no more than a valued service when it declares in an instruction that which is a conceded fact or that which is established by clear, positive and uncontradicted evidence. Blank v. Coffin, 20 Cal.2d 457, 461, 126 P.2d 868. As to that part of A with reference to the officer's approach to the point of the accident, the instruction may be fairly construed to read as follows: ‘In the event that you find it to be a fact that Officer Reed approached the entrance to the club's driveway with his front red lamp lighted and his siren sounding, you are instructed that such fact did not justify his proceeding without exercising reasonable care to look for vehicles then and there on the highway.’ The exercise of reasonable care is the duty of every motorist whether he drives an emergency car or a heavy truck. The concluding passage of section 454(b), supra, specifically declares that notwithstanding the exemptions provided for the drivers of emergency cars they 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.’ An instruction in the very language of a pertinent statute is ordinarily not erroneous.

Appellants contend that the last sentence of B is ‘an argument of the most prejudicial nature’ in that it assumes that ‘deceased did what the court told the jury he could not do’; that there was ‘no direct rect evidence as to whether deceased booked or how often he looked or what he saw.’ The first sentence of B is a mere declaration of a clearly established and statutory principle. While the presumption (Code Civ.Proc. sec. 1963, subd. 15) is that the officer looked and saw what an ordinarily prudent person would have seen, yet such presumption can be overcome by physical facts. Had deceased looked he would have seen the Simpson car and would have sounded his siren or applied his brakes. He did neither, but struck the automobile with great violence. Considering such physical facts there was no alternative to the finding that deceased proceeded negligently and that he proximately caused the collision. The use of the word ‘negligently’ in the second sentence of B was technically an error, but under the authority of article VI, section 4 1/2 of the Constitution reversal of the judgment is not required.

The authorities cited by appellants in their attack on B are not pertinent. In Kinnear v. Martinelli, 84 Cal.App. 721, 258 P. 686, there was no proof of the decedent's negligence to rebut the presumption. The case declares the rule that instructions should be based upon evidence or upon reasonable inferences. In the instant case the presumption was overcome. Tower v. Humboldt Transit Company, 176 Cal. 602, 169 P. 227, is not pertinent since A and B merely declare established law.

Instructions C and D are challenged on the ground that they attempt to itemize certain physical factors, namely, the damage to the two vehicles, their weights and sizes, the absence of skid marks, and other physical phenomena. Because of Officer Reed's death the consideration of such evidence was proper upon the issue of the speed of his motorcycle. By C the jury were directed to determine in their deliberations whether the officer observed the Simpson automobile at any time prior to the accident. By D they were admonished to determine the speed of the motorcycle just prior to the collision and to consider the physical evidences. That part of D directing the jury to weigh the opinion on the speed of the motorcycle and consider it at its worth was not error. The mere opinion of a witness in his direct examination has no weight as against facts stated by him that are contrary to such opinion, and physical facts established by other evidence should be considered in connection with such opinion. See Waizman v. Black, 101 Cal.App. 610, 613, 281 P. 1087. Nothing was said in any of the four instructions that indicated a desire of the court that the other instructions with reference to the negligence and the duties of motorists be ignored.

The sixth instruction assigned as prejudicial is as follows: ‘You are instructed that a person is not required to anticipate that which cannot be reasonably expected. Thus, in this case if you find that at the time the defendant Simpson began to make his left turn the traffic approaching from the east, including the motorcycle of the deceased, was a sufficient distance away so that a reasonable and prudent person in the same position as Mr. Simpson would not have anticipated that any westbound traffic would approach him so quickly as to create a situation of danger, then you are instructed that Mr. Simpson was not required to expect or anticipate such development and cannot be held to have been negligent because of the fact that the accident to any extent may have resulted from such failure on his part to thus anticipate such developments.’

The phraseology used in this instruction is not appropriate but it is not erroneous. Appellants say that it gave Simpson the right to assume that he could make his left turn without the necessity of his exercising ordinary care. The instruction in effect told the jury that if they found that at the time Simpson began his left turn the westbound traffic including Reed's motorcycle was at such a distance that Mr. Simpson as a reasonable and prudent man, that is, while in the exercise of ordinary care, would not have anticipated that such traffic would approach him so quickly as to create a situation of danger, then he was not negligent in failing to expect the sudden approach of westbound traffic. If at the time of his turn the on-coming traffic was so distant that a prudent driver would have calculated himself safe to make the turn, he was not negligent. The instruction does not assume that the westbound traffic was ‘a sufficient distance away and approaching so quickly as to cause the accident.’ The authorities cited by appellants in support of their attack on the instruction do not support their contention In Crabbe v. Rhoades, 101 Cal.App. 503, 519 282 P. 10, 16, the court instructed the jury ‘that defendant Gaston had a right to presume that drivers of other automobiles would not operate them at an unlawful rate of speed.’ Such language left nothing for the jury's determination concerning the caution required of a motorist who relies upon the due care of others on the highway. In Galway v. Guggolz, 117 Cal.App. 639, 641, 4 P.2d 290, the instruction attempted to advise the jury that the operator of the vehicle had a right to assume that the on-coming car was going at a lawful rate of speed. Likewise in Scandalis v. Jenny, 132 Cal.App. 307, 314, 22 P.2d 545, 548, the jury was instructed that the automobile of defendant ‘was on the easterly side of Shasta street proceeding northerly.’ Also, in Goehring v. Rogers, 67 Cal.App. 253, 257, 227 P. 687, the court had instructed the jury in effect that if defendant Rogers did not decelerate his speed he was negligent. The instructions given in Clarke v. Volpa Brothers, 51 Cal.App.2d 173, 124 P.2d 377, related to a factual situation which bears no resemblance to that here involved and they are not in substance or in phraseology similar to the instruction here considered.

The judgment is affirmed.

MOORE, Presiding Justice.

McCOMB and WILSON, JJ., concur.