Davidson v. Marin County

• Decision Date: 19 December 1956
• Citation: 147 Cal.App.2d 54,304 P.2d 743
• Court: California Court of Appeals
• Parties: Arthur Deflay DAVIDSON, Plaintiff and Appellant, v. COUNTY OF MARIN, Frank Lewis Machado, Defendants and Respondents. Cov. 16885.

Page 743

304 P.2d 743

147 Cal.App.2d 54

Arthur Deflay DAVIDSON, Plaintiff and Appellant, v. COUNTY OF MARIN, Frank Lewis Machado, Defendants and Respondents.

Cov. 16885.

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

Dec. 19, 1956.

Thomas L. Berkley, Robert P. Brorby, Craig Z. Randall, Berkeley, for appellant.

W. O. Weissich, Dist. Atty. of Marin County, San Rafael, Heley, Thomas & Buresh, San Rafael, for respondents.

KAUFMAN, Justice.

This is an appeal by plaintiff, Arthur Deflay Davidson, from a judgment, after jury verdict in favor of defendants and respondents, Marin County and Frank Machado in an action for damages for the death of Youler Davidson, wife of appellant, and for personal injuries to appellant, alleged to have arisen out of a collision between appellant's automobile and respondent county's fire truck driven by respondent Machado. No personal judgment was sought against respondent Machado. Judgment was rendered in favor of appellant on respondents' cross-complaint.

The accident occurred on August 22, 1953, at about 7:30 p. m. at the intersection of U. S. Highway 101 and the Tiburon-Mill Valley Road (State Route 52), known as the Alto Wye intersection. Appellant Davidson and his wife were driving in a southerly direction on U. S. Highway 101 and Frank Machado, Captain of a Marin County Fire Department sub-station, was driving a half-ton pick up truck, owned by Marin County in an easterly direction on Route 52 in response to a call reporting a fire. The truck was equipped with two red lights, front and rear, and a siren on the front. U. S. Highway 101 at the Alto Wye intersection with State Route 52 was on the date of the accident six lanes wide, having two northbound and two southbound lanes for through traffic, a storage lane for northbound traffic for left turns westward, as well as a storage lane for southbound traffic for traffic turning eastward. Some distance north of this intersection a service road extends from the westerly edge of U. S. Highway 101 in a southwesterly direction to intersect State Route 52 at a point west of the Alto Wye intersection, forming a triangular area between said road and the highway which is generally used for parking vehicles. There is a hill to the north of the intersection, and at a point between its crest and the Alto Wye intersection there is a flashing amber light facing southbound traffic. The highway is downgrade from the crest of the Alto hill to the intersection. State Route 52 is generally level having but a slight incline in its approach to the intersection. All traffic at the intersection is controlled by signal lights. The posted speed limit on U. S. Highway 101 in this area is 45 miles per hour.

When respondent Machado received the call that there was a fire at a restaurant known as the Blue Fountain, located on the easterly side of U. S. Highway 101, he left his home which was some 8 blocks northwest of the Alto Wye intersection. He drove the fire truck down Tower Drive to its intersection with State Route 52, turned east on State Route 52, passing to the right of several vehicles which were stopped thereon, headed in an easterly direction. Machado testified that he believed that he had been traveling at between 30 to 35 miles per hour as he entered the intersection, but slowed down upon entering it. In the hospital after the accident, Machado stated that he had been traveling between 5 and 10 miles per hour. When he was 400 to 500 feet from the intersection the signal light showed amber. The witness Williams, who resided to the northeast of the intersection, had observed that all traffic about the intersection had stopped as the fire truck entered it with the exception of one vehicle proceeding southward in the inside fast lane of U. S. Highway 101. This was appellant's car which collided with the left front of the fire truck.

Machado testified that the blinking red lights on the truck were placed in operation when he left his home. He sounded the siren continuously for the last two hundred feet up to intersection. Several witnesses who observed the approach of the truck for several hundred feet saw the red lights burning. The witness Thompson who followed the truck stated that the siren was sounding on Tower Drive, and that he heard it as he followed. Kirkpatrick, whose car was parked in the northbound storage lane heard the siren. The witness Williams, referred to above, heard the siren, although he was inside his home on the opposite side of the intersection. The Perrys in the car some 120 feet behind appellant's, heard the siren. Mr. Perry saw the fire truck approaching on State Route 526. Perry stated that the signal for southbound traffic was green before appellant entered the intersection and was green at the time of the collision. Witnesses placed the speed of the fire truck as it entered the intersection variously at 8 to 10, 12 and 15 miles per hour.

Appellant testified that as he drove over the crest of the hill north of the Alto Wye intersection he heard a siren, but that he heard no siren after that. He was traveling at a speed of 30 miles per hour, and when he was about 300 or 400 feet from the intersection, the traffic signal turned green, that he looked both east and west, saw only one or two cars headed easterly, and continued on to the point of collision. He did not at any time prior to the collision apply his brakes. Machado was rendered unconscious as a result of the crash. When Machado later spoke to appellant in Marin General Hospital, appellant said 'my wife told me so.' Appellant's wife died as a result of her injuries.

Appellant contends that the trial court erroneously instructed the jury that there is a negligent operation of an emergency vehicle only where the driver of such vehicle fails to give a timely warning or otherwise makes an arbitrary exercise of the exemption from the rules of the road which can be said to be wilful misconduct. It is appellant's contention that even though the required warnings are given, ordinary negligence, such as failing to keep a proper lookout, may be sufficient to impose liability upon the county. Section 454, motor Vehicle Code provides as follows:

'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 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 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.'

Having read the foregoing section to the jury, the court instructed that the exemption applied to those sections of the Vehicle Code regulating speed, use of different lanes, overtaking and passing, rights-of-way, rights and duties with respect to pedestrians, street cars, safety zones, standing and parking, and then stated:

'It follows that when there exist the conditions which said statute requires as a basis for said exemption it is not negligence for the driver of such an emergency vehicle to disregard the rules from which he thus is exempted, unless he is guilty of an arbitrary exercise of the privileges embraced in that exemption.

'It is equally important to note, however, that the exemption does not apply if any one of the conditions upon which it is based is, in fact, absent, and in such a case the driver of the emergency vehicle has no privileges over other drivers on the highway. It then is his duty to obey the laws that apply generally to the use of the highway and he is held to the same duty of exercising ordinary care.'

The jury was then instructed as to what would constitute an arbitrary exercise of the privileges given an emergency vehicle by Section 454, and told that 'Whether or not the driver of an emergency vehicle has complied with all the conditions necessary to bring him within Section 454 of the Vehicle Code, and whether or not he arbitrarily exercises his privileges as granted to him under said section is a question of fact for you, the jury, to determine.' It is clear, therefore, that the court left to the jury the determination of whether or not the driver of the fire truck had fulfilled the conditions which gave him the exemption, and whether, if he did enjoy the exemption, he had arbitrarily exercised the privilege.

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....