Gallup v. Sparks-Mundo Engineering Co.

• Decision Date: 07 June 1954
• Docket Number: SPARKS-MUNDO
• Parties: GALLUP et al. v.ENGINEERING CO. et al. BROWN v. C. O. SPARKS, Inc., et al. L. A. 23070, 23071
• Court: California Supreme Court

Page 34

271 P.2d 34

43 Cal.2d 1

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

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

L. A. 23070, 23071.

Supreme Court of California

June 7, 1954.

As Modified July 2, 1954.

Parker, Stanbury, Reese & McGee and Wm. C. Wetherbee, Los Angeles, for appellants.

Russell H. Pray, William C. Price, Long Beach, Samuel P. Block, Compton, Flaum & Hecker, Beverly Hills, and Henry F. Walker, Los Angeles, for respondents.

BRAY, Justice pro tem.

These two actions, which have been consolidated for trial and appeal, arise from a collision between a truck driven by one of the defendants and an ambulance driven by decedent, who died as a result of injuries sustained in the accident. In one action Mrs. Gallup, the mother of decedent, seeks recovery for his death, and, in the other, L. B. Brown, the owner of the ambulance undertakes to recover damages for harm done to that vehicle. Defendants in both actions are the driver of the truck, two corporations which employed him, and another corporation which owned the truck. The jury returned verdicts for plaintiffs against all defendants, and judgments were entered accordingly. Defendants on this appeal do not claim that the evidence is insufficient to show that the driver of the truck was negligent but assert that the trial court erred in instructing the jury and in ruling upon the admissibility of evidence.

The collision occurred in Los Angeles about 10 p. m. on January 17, 1951, in clear weather at the intersection of Atlantic Boulevard, which is a northeast-southwest arterial, and Washington Boulevard, which runs east and west. Both boulevards were marked for four lanes of traffic, two in each direction. The intersection was well lighted and was controlled by tri-light traffic signals which showed green, amber and red lights. On the night of the accident the traffic signals were operating normally, and the amber lights were adjusted to shine for a period of three to four seconds before the red lights appeared. The ambulance was proceeding in a northerly direction along Atlantic, and the truck, loaded with 17 tons of sand, was going west on Washington. Two other vehicles on Washington were halted waiting for the stop signal to change. The truck, after passing to the right of these vehicles and entering the intersection, struck the right front door of the ambulance, and the ambulance was propelled sideways for a distance of about 35 feet.

There is a conflict as to whether the ambulance went against a stop signal. According to the testimony most favorable to plaintiffs, the ambulance, with two sirens sounding and three red warning lights flashing, entered the intersection as the traffic light changed from green to amber. There is evidence, however, that it entered the intersection when the signal was red.

The first question is whether decedent was privileged to proceed against red traffic lights on the trip involved here. A driver of an ambulance of the type driven by decedent is permitted to ignore traffic signals if a siren is sounded, a red warning light is shown, and the vehicle is driven in response to an emergency call, provided the driver exercises due care and does not use the privilege arbitrarily. Vehicle Code, §§ 44(e), 454. 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 and not upon whether there is an emergency in fact. Coltman v. City of Beverly Hills, 40 Cal.App.2d 570, 572, 105 P.2d 153; Head v. Wilson, 36 Cal.App.2d 244, 252, 97 P.2d 509. The driver, of course, should have reasonable grounds to believe that there is an emergency.

There is evidence in the present case which will support a finding that decedent reasonably believed he was responding to an emergency call. At the time of the accident the ambulance was responding to a telephone message received by decedent on behalf of his employer, who operated an ambulance service. The call was made by an employee of the Samaritan Institute in Los Angeles, an institution which treated alcoholics and which had been doing business with the ambulance service for several years. The manager of the ambulance company had instructed decedent that all calls from the institute, unless containing contrary directions, should be treated as emergencies and that restraint straps and a three-man crew should be taken in response to such calls. No contrary directions were given in the call placed on the night of the accident. Restraint straps were taken on the trip, and the ambulance crew was made up of two attendants and decedent, who was 'top man' of his crew. There is testimony that a three-man crew and restraint straps were taken in ambulances operated by this company whenever a patient was potentially violent, that some alcoholics are violent, and that a potentially violent patient would be considered an emergency case. Before going on the call decedent prepared, in duplicate, a 'trip ticket' which was a memorandum relating to the nature of the trip about to be taken. The original of this writing was placed in the ambulance where it was found after the collision, and the carbon copy was transcribed into the 'log book' or permanent record of the company by one of its employees on the night of the accident. The manager of the ambulance company identified the 'trip ticket' and the corresponding page of the 'log book,' told how they were prepared, and testified that they were made out in the regular course of business. Among the notations appearing on these documents was the letter 'E' which the manager identified as the customary designation of an emergency call.

Defendants assert that certain undisputed evidence shows that, as a matter of law, decedent was not responding to an emergency call, and they argue that the trial court therefore erred in refusing a requested instruction to this effect and in giving instructions which permitted the jury to find that he was acting in response to such a call. The facts relied upon are that the Samaritan Institute was devoted exclusively to the treatment of alcoholics, that the employee of the institute who placed the call stated only that there was a 'pick-up' at an address in Pomona and said nothing as to the condition of the patient or as to whether the case should be treated as an emergency, and that it was 20 miles from the place of business of the ambulance service to the address in Pomona and 30 miles from that address to the institute. It is defendants' position that the character of the institute requires an inference that the patient was merely an alcoholic, and that this, considered together with the facts that the language of the call did not indicate the existence of an emergency and that a trip of 50 miles was necessary to deliver the patient, shows that decedent reasonably could not have believed that an emergency existed. In our opinion, however, these matters only present a conflict with the other evidence and do not compel the conclusion urged by defendants.

We do not agree with defendants' contention that the 'trip ticket' and corresponding page of the 'log book' were improperly admitted in evidence. Section 1953f of the Code of Civil Procedure, which is part of the Uniform Business Records as Evidence Act, provides, 'A record of an act, condition or event, shall, in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.' In the present case, as we have seen, the challenged documents were prepared in the regular course of business on the night of the accident, and the manager of the ambulance company identified them and told how such records were made. Defendants nevertheless claim that the 'trip ticket' and page of the 'log book' do not come within the statute because the letter 'E' appearing on them, used by the company to designate an emergency call, assertedly represents a conclusion which the entrant would not have been permitted to give as a witness at the trial. However, decedent made the entry on the 'trip ticket,' which was copied into the 'log book,' and he, of course, could have testified at the trial as to whether he believed that an emergency call had been received. The fact that the notation was self-serving, in a sense, does not make it inadmissible. Most business records are necessarily so. That the record was selfserving does not make it inadmissible. See Davis v. Fanny Briggs Carr, Inc., 105 Cal.App. 777, 779, 288 P. 710. This fact was one for the jury to consider in weighing its effect. The notation was no stronger than the decedent's testimony as to his belief would have been. It was then for the jury to determine from all the evidence whether such belief was reasonable. For discussion of the application of the Uniform Business Records as Evidence Act, see People v. Gorgol, 122 Cal.App.2d 281, 265 P.2d 69; Doyle v. Chief Oil Co., 64 Cal.App.2d 284, 148 P.2d 915.

The fact that the records were kept and introduced in evidence by a party relying upon them does not, of course, make section 1953f inapplicable. See Robinson v. Puls, 28 Cal.2d 664, 668-669, 171 P.2d 430.

The testimony to the effect that restraint straps and a three-man crew were taken in an ambulance whenever an emergency was involved was also properly admitted. This testimony, considered together with the evidence that such straps and a three-man crew were used on the particular trip involved here, permits an inference that decedent, who was in charge of the crew, believed that there was an emergency and bears upon the reasonableness of that belief.

It is claimed that the trial court erred in...