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District Court of Appeal, Third District, California.

FRUITRIDGE FIRE PROTECTION DISTRICT, a local public entity, Plaintiff and Respondent, v. Milo T. JUDGE, Defendant and Appellant.

Milo T. JUDGE, Plaintiff and Appellant, v. FRUITRIDGE FIRE PROTECTION DISTRICT, a local public entity, Defendant and Respondent.

Civ. 10971.

Decided: October 13, 1965

John J. Hannegan, Sacramento, for appellant. Nicholas Alaga and Joseph F. X. Murphy, San Francisco, for respondent.

There was an intersection accident between a fire truck owned by respondent fire district and an automobile driven by appellant Milo T. Judge. Ronald Chapman, driver of the fire truck, was killed and Judge was injured. Judge filed an injury action against the fire district, and the latter filed a separate action against Judge for damage to its fire truck. The defense of contributory negligence was raised in both actions, which were consolidated for trial. The jury found against Judge in both actions and awarded the district $7,433.50 for damages to its vehicle. Judge appeals from both judgments.

There are two issues on appeal: (a) whether the court erred in instructing the jury that the fire truck was an authorized emergency vehicle at the time of the accident, and (b) whether the trial court erred in instructing the jury that Chapman, the fire truck driver, was presumed to have been exercising ordinary care at the time of the accident. The presumption of care is particularly stressed becase the fire district, although deprived of the testimony of its deceased driver, had another employee who could and did testify in detail concerning the collision.

The district employee who testified at the trial was Harvey Munstenteiger. The fire truck, red lights flashing and siren blowing, was respondings to a ‘mutual aid’ call from another district to assist in extinguishing a grass fire which had been burning at a dumping ground for several hours. The personnel of the Fruitridge district had been in touch with the situation via radio, knew that other equipment was at the scene and that the situation was not ‘a life or death matter.’ On the other hand, a high wind was blowing. Before reaching the accident intersection the fire truck had stopped several times, once at an intersection to permit cross traffic to proceed and another time to watch a man extinguish a small fire near a drainage ditch. The fire truck was being driven along Gerber Road, an east-west rural road. Chapman was driving and Munstenteiger sat on the front seat to his right. Two other firemen were on the fire truck.

The fire truck arrived at Gerber Road's intersection with Bradshaw Road, the latter a north-south arterial boulevard. At the intersection was an arterial stop sign applicable to traffic on Gerber Road. Munstenteiger testified that he and Chapman were familiar with the area in general and this intersection specifically. North-south traffic on Bradshaw Road traveled at a ‘pretty good rate of speed.’ There was a building at the northwest corner which somewhat obscured the view to the north on Bradshaw Road. Watching for cross traffic was one of Munstenteiger's duties. Because of dust the windows on the fire truck were closed. The firemen knew that wind made it difficult for motorists on the upwind (north) side to hear the siren. There was no automobile ahead of the fire truck. Munstenteiger testified that one block from the intersection the speed of the fire truck was between 35 and 40 miles per hour; that Chapman took his foot off the brake in the vicinity of the stop sign at Bradshaw Road and entered the intersection with his foot off the brake. The truck collided with the automobile of Milo Judge traveling southward on Bradshaw Road. According to Munstenteiger, the fire truck's speed at the time of the collision was 25 to 30 miles per hour. There was no claim that the fire truck had done more than abate its speed as it passed the arterial stop sign.

As a result of his injuries, Judge had no recollection of the events preceding the actual impact. He remembered crossing the bridge on Bradshaw Road 400 feet north of the Gerber Road intersection and next recalled being pinned in his car. He testified that all the windows on his automobile were rolled up at the time of the accident, but he was not sure whether the window on the driver's side was closed. He did not hear the siren.

A traffic officer who investigated the accident estimated the speed of the fire truck at 40 to 45 miles per hour. He found no evidence of skidmarks or evasive action by either driver.

Emergency Status of the Fire Truck

The trial court instructed the jury that it ‘has been established by the evidence in this case that the vehicle by which plaintiff, Milo Judge, claims to have been injured was an authorized emergency vehicle * * *.’ The court then read to the jury excerpts from Vehicle Code section 21055, which exempts authorized emergency vehicles from traffic regulations (such as the basic speed law and the requirement of stopping at the entrance to a through highway) provided the vehicle's siren is on and lighted red lamp displayed. The court also instructed the jury that the emergency vehicle exemption did not relieve the driver from the duty to drive with due regard for the safety of other persons or permit him to exercise the privilege arbitrarily.

When the evidence is conflicting or when conflicting inferences may be drawn from the same evidence, the question of a vehicle's emergency status is one for the jury. Whether a vehicle is driven in response to an emergency call depends on the nature of the call received and the situation as presented to the mind of the driver, not whether there is an emergency in fact; the driver, however, should have reasonable grounds to believe that there is an emergency. (Gallup v. Sparks-Mundo Engineering Co., 43 Cal.2d 1, 5, 9, 271 P.2d 34; Head v. Wilson, 36 Cal.App.2d 244, 250–251, 97 P.2d 509.)

There was a palpable question whether the situation presented to the mind of Chapman, the fire truck driver, was an emergency. Although a high wind was blowing, the grass fire had been in progress for several hours and the Fruitridge fire crew were on the way to assist firemen who were already at the scene. The fact that Chapman had stopped at an earlier intersection to give way to cross traffic was hardly consistent with his failure to stop at the arterial stop sign at Bradshaw Road. The jury could reasonably have concluded that there was no emergency, hence that the fire truck was subject to ordinary traffic rules. By instructing the jury that the fire truck had the status of an emergency vehicle, the trial court took the issue of emergency status from the jury, effectually telling the jurors that the driver had a privilege to enter the Bradshaw Road intersection without stopping and at a relatively high speed. Whether the privilege existed was a question which should have been submitted to the jury. The instruction was erroneous.

Had it not been for the instruction, there was a reasonable probability that the jury might have found the fire district's driver negligent in entering the intersection at a relatively high speed and in not stopping at the arterial stop sign. The error was prejudicial.

Presumption of Care

The instruction that Chapman, the deceased driver, was presumed to have exercised ordinary care was given the jury in a trial in which the fire district was both a defendant charged with negligence and a plaintiff charged with contributory negligence. Where the alleged negligence of a decedent is at issue, and the testimony describing his conduct must be given by other witnesses, the general rule permits a jury instruction that the decedent is presumed to have exercised ordinary care. (Gigliotti v. Nunes, 45 Cal.2d 85, 92–93, 286 P.2d 809; Westberg v. Willde, 14 Cal.2d 360, 364–365, 94 P.2d 590.) It is now the established California rule that the presumption of care is to be weighed as evidence in the case and is available in support of a defendant charged with the negligence, or of a plaintiff charged with the contributory negligence, of a deceased person. (See Scott v. Burke, 39 Cal.2d 388, 394–395, 247 P.2d 313; Brown v. Connolly, 62 A.C. 405, concurring opinion at pp. 412–413, 42 Cal.Rptr. 324, 398 P.2d 596; Witkin, Cal.Evidence, secs. 65–67.) The instruction should not be given where the person whose conduct is in issue testifies himself. (Laird v. T. W. Mather, Inc., 51 Cal.2d 210, 221, 331 P.2d 617; Speck v. Sarver, 20 Cal.2d 585, 587–588, 128 P.2d 16; Klein v. Southern Pac. Co., 203 Cal.App.2d 72, 77, 21 Cal.Rptr. 233.) When the individual charged with negligent conduct is dead, the fact that other witnesses testify fully as to his conduct does not deprive the party of the presumption. (Brandelius v. City & County of San Francisco, 47 Cal.2d 729, 736, 306 P.2d 432; Gigliotti v. Nunes, supra, 45 Cal.2d at p. 93, 286 P.2d 809.) A qualification occurs when the party seeking to invoke the presumption produces uncontradicted testimony which is ‘wholly irreconcilable’ with the presumption. In the latter situation the presumption is dispelled and disappears from the case. (Brandelius v. City & County of San Francisco, supra, 47 Cal.2d at p. 736, 306 P.2d 432; Gigliotti v. Nunes, supra, 45 Cal.2d at pp. 92–93, 286 P.2d 809; Akers v. City of Palo Alto, 194 Cal.App.2d 109, 119, 14 Cal.Rptr. 767.)

The presumption of care is available to an employer-defendant who is charged with the negligence of its nowdeceased employee. (Neilsen v. Uyechi, 172 Cal.App.2d 508, 513, 342 P.2d 329; Voorheis v. Hawthorne-Michaels Co., 151 Cal.App.2d 688, 695–696, 312 P.2d 51.) It is equally available to an employer-plaintiff whose suit for vehicle damage is countered by a claim of contributory negligence on the part of its now-deceased employee. (Wells Truckways, Ltd. v. Cebrian, 122 Cal.App.2d 666, 679, 265 P.2d 557.)

There is much validity in the argument that the presumption of care should not be available to an employer when the testimony of one or more surviving employees describes the conduct of a deceased fellow employee in detail. In this case Munstenteiger, a fellow employee, was in a position to observe the events leading up to the collision equally with Chapman, the driver. The employer, charged with vicarious responsibility for the conduct of its dead employee, enters the trial with the tactical superiority of a party whose opponent has the burden of persuasion; claims the additional advantage of choosing whether to rely on the testimony of its live employee or on the artificial presumption clothing its dead employee in innocence; and if it finds profit in the former, suffers no loss of the latter. Each of these tactical benefits imposes a corresponding handicap on the opposing party. If fairness is the purpose of the presumption of care, then the employer's cup of fairness is filled to overflowing.

Such protests argue against the rule itself but justify no departure from it. It is not particularly significant that the flesh-and-blood witness who supplements the artificial presumption is a fellow employee rather than a bystander. Protests of this sort mean only that the presumption of care should be limited to situations where the principal actor's unavailability deprives the party of practically all his evidence. They parallel earlier arguments against categorizing the presumption as evidence, arguments which have been consciously and consistently rejected by the majority of the State Supreme Court. (See Scott v. Burke, supra, 39 Cal.2d 388, dissenting opinion pp. 402–406, 247 P.2d 313; Speck v. Sarver, supra, 20 Cal.2d 585, dissenting opinion pp. 590–598, 128 P.2d 16; Weinstock and Chase, The ‘Presumption of Due Care’ in California, 4 Hast.L.J. 124; Note, Evidence: ‘Presumption of Due Care’ in California, 41 Cal.L.Rev. 748.) The law of California, as authoritatively stated in Gigliotti v. Nunes, supra, 45 Cal.2d at page 93, 286 P.2d at page 814, is: ‘* * * the fact that other witnesses for the parties testify fully as to the acts and conduct of the allegedly negligent person does not deprive the party relying on the presumption of the benefit thereof * * *.’

The evidence produced by the fire district was not ‘wholly irreconcilable’ with the presumption of care. Munstenteiger was the only eyewitness to testify.1 As we have noted, the fire truck's status as an emergency vehicle was a jury question. Properly instructed on that question, the jury might have concluded that the fire vehicle was on an emergency call and its driver had acted with reasonable care. This is not a case where the appellate court finds itself able to decide that the plaintiff's own evidence established its contributory negligence as a matter of law. (Cf. Brandelius v. City & County of San Francisco, supra, 47 Cal.2d at p. 736, 306 P.2d 432; Mar Shee v. Maryland Assurance Corp., 190 Cal. 1, 9–10, 210 P. 269; Akers v. City of Palo Alto, supra, 194 Cal.App.2d at p. 119, 14 Cal.Rptr. 767.) Since the issue of Chapman's negligence hung in midair awaiting the jury's determination, we cannot say that Munstenteiger's testimony was irreconcilable with the presumption of Chapman's care. We conclude that the presumption of care instruction was proper.

Effect of Error on Judgments

In the fire district's property damage action, the jury found that Judge had been negligent. Necessarily, then, in Judge's personal injury suit the jury found contributory negligence. A plaintiff's contributory negligence and a defendant's negligence are generally regarded as distinct issues. (Westcott v. Hamilton, 202 Cal.App.2d 261, 269, 20 Cal.Rptr. 677; Rapp v. Southern Service Co., 116 Cal.App.2d 699, 703, 4 P.2d 195.) In a strict sense, the erroneous emergency vehicle instruction was directed at the jury's evaluation of the conduct of the fire district's driver, not its characterization of Judge's conduct. The latter, however, had been driving on a through highway at a speed (according to his testimony) of 35 miles per hour and was hit by the fire truck, which drove past the arterial stop sign without stopping. For all we know, the instruction that the fire truck had the status of an emergency vehicle may have caused the jurors to decide that Judge had violated a duty of care. The error requires a retrial of the issue of Judge's negligence as well as that of the district.

Both judgments are reversed.


1.  Although Munstenteiger was called to the stand by counsel for Judge as an adverse witness under Code of Civil Procedure section 2055, his testimony constituted a substantial portion of the case which the fire district chose to submit to the jury. Thus there is much reason to regard his testimony as produced by the very party who seeks to invoke the presumption of care. (Coe v. Southern Pacific Co., 203 Cal.App.2d 509, 515–517, 21 Cal.Rptr. 731; cf. Smellie v. Southern Pacific Co., 212 Cal. 540, 555–559, 299 P. 529; Orbach v. Zern, 138 Cal.App.2d 178, 181, 291 P.2d 120.

FRIEDMAN, Justice.

PIERCE, P. J., and REGAN, J., concur.

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Docket No: Civ. 10971.

Decided: October 13, 1965

Court: District Court of Appeal, Third District, California.

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