Hoel v. City of Los Angeles

• Decision Date: 17 October 1955
• Citation: 136 Cal.App.2d 295,288 P.2d 989
• Parties: Esther G. HOEL, Donald Hoel, Robert Hoel and Glen Hoel, a minor, by his Guardian ad litem, Esther Hoel, Plaintiffs and Appellants, v. CITY OF LOS ANGELES et al., Defendant and Respondent. Civ. 20739.
• Court: California Court of Appeals Court of Appeals

Page 989

288 P.2d 989

136 Cal.App.2d 295

Esther G. HOEL, Donald Hoel, Robert Hoel and Glen Hoel, a minor, by his Guardian ad litem, Esther Hoel, Plaintiffs and Appellants, v. CITY OF LOS ANGELES et al., Defendant and Respondent.

Civ. 20739.

District Court of Appeal, Second District, Division 3, California.

Oct. 17, 1955.

Hearing Denied Dec. 14, 1955.

Paul Gordon, Los Angeles, and Joseph A. Capalbo, Long Beach, for appellants.

Roger Arnebergh, City Atty., Bourke Jones, Asst. City Atty., Joseph N. Owen and Weldon L. Weber, Deputy City Attys., Los Angeles, for respondent.

ASHBURN, Justice pro tem.

Plaintiffs appeal from an order granting a new trial in a jury case in which they secured a verdict for $10,000. The action is one for wrongful death of Arup C. Hoel, brought by his heirs under the Public Liability Act of 1923, now codified in Government Code, sections 53050 and 53051.

The order granting the defendant's motion for new trial does not specify insufficiency of the evidence to justify the verdict as a ground upon which granted, nor does it specify any other ground. It is therefore conclusively presumed that the order was not based on insufficiency of the evidence, Code Civ.Proc. § 657, subd. 7, and the appellate court is precluded from examining into that question but has the duty 'to consider the entire record upon which the order was based to discover whether there is any error which would have justified the trial court in making the order, and if so the order will be sustained although the grounds urged on the motion (with the exception of the ground of insufficiency of the evidence) were not specified in the order.' Ballard v. Pacific Greyhound Lines, 28 Cal.2d 357, 361, 170 P.2d 465, 468.

Such an examination discloses that there were at least three errors which justify the granting of the motion, (1) denial of motion to strike testimony of Captain Louis J. Fuller of the Los Angeles Police Department, (2) overruling of objection to proffered portion of investigating police officers' accident report and (3) modification of an instruction requested by defendant.

The accident occurred on Sunday, May 4, 1952, about 7:40 a. m., at the intersection of Washington Boulevard and Griffith Street. Washington runs east and west and Griffith north and south. At this intersection were four automatic traffic signals, one on each corner; they were Acme type, having white and red semaphore arms for 'go' and 'stop', and green and red lights operating with the arms, green for 'go' and red for 'stop.' Mr. Hoel was driving a Pontiac sedan easterly on Washington and arrived at the intersection when the traffic signal was open or 'go' for him. At the same time James Williams was driving a Buick automobile northerly on Griffith Street; the signal on the southeast corner governed his movement; that white or go arm was displayed and the red light was on; Mr. Williams, seeing the white arm and not noticing the red light, went into the intersection, collided with the Hoel car, which swerved, hit a westbound automobile driven by one Yaeger, and turned over on Mr. Hoel, inflicting injuries which caused his death. The arm motor of the signal on the southeast corner was out of order and the white arm was stuck outside the housing box, giving the go signal to all traffic, while the red arm was stuck inside the housing.

Section 53050 Government Code defines 'public property' as meaning public street, highway, building, park, grounds works, 'or property'; and 'local agency' as including a city. Section 53051 provides: 'A local agency is liable for injuries to persons and property resulting from the dangerous or defective condition of public property if the legislative body, board, or person authorized to remedy the condition:

'(a) Had knowledge or notice of the defective or dangerous condition.

'(b) For a reasonable time after acquiring knowledge or receiving notice, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition.' It is now settled law that automatic traffic signals are included in the term property as used in the statute. Bady v. Detwiler, 127 Cal.App.2d 321, 330, 273 P.2d 941.

The trial of this case revolved principally around the phrase of section 53051, 'or person authorized to remedy the condition', and specifically the question whether a police officer comes within that category. Plaintiffs' theory was that James Taylor Allen, who was a motor officer in the Traffic Enforcement Division of the Los Angeles Police Department, his motor number being 203-M, observed the defective condition of the traffic signal and reported it to the 'Mike Room' or Communications Division of the Police Department at 7:23 a. m.; that the information was relayed to the Department of Traffic, in charge of maintenance of such signals, at 7:26 a. m.; Albert Dahl, a field man was assigned over the air to correct the situation at 7:28 a. m.; he was then at Jefferson and Vermont Streets, and arrived at the Washington-Griffith intersection at 7:43 a. m., after the accident had happened; that there would have been no such occurrence if Officer Allen had performed his duty of correcting the condition of the signal immediately upon discovery of the dangerous situation created by the existing defect therein.

To establish this alleged dereliction on his part, plaintiffs' counsel called under section 2055, Code of Civil Procedure, Captain Louis J. Fuller, head of the Traffic Division of the Police Department. Asked what instructions are given to police officers concerning discovery of defective traffic signals, he testified that the officer should notify the Communications Division, giving location of the signal, 'and he should turn it off, and he should direct traffic if the conditions warrant it.' Also that the officer's patrol box key generally fits most types of traffic signal control boxes, though some of the Acme signals require a special key; that the officer should exercise his own judgment and discretion as to directing traffic. Asked what should be done if the semaphore is up and he has no key, the witness said: 'A. Yes, if a signal is defective and exhibiting conflicting instructions to the driving public, he should do everything possible to remove the particular signal by pulling the arms down, or in the case of lights, they are to be covered up by newspapers or anything that he can get to effect a covering of the signal. In other words, he is supposed to put the signal out of operation if there is a possibility that the congestion or the conditions which exist are dangerous.' Counsel for defendant then moved to strike the testimony upon 'the ground it is incompetent, irrelevant and immaterial and does not tend to prove any issue in this case, in that a failure of an employee, including a policeman, to do a duty is not a responsibility of liability of the City, itself. It is hornbook law that failure of employees of the City to do their duties, or otherwise, if they commit a tort, does not render the City liable in the absence of a statutory enactment to that effect.' This motion was made in the presence of the jury. Court and counsel then retired to chambers and after considerable discussion the motion was denied; the judge then informed the jury 'that the motion to strike the Captain's testimony has been denied.' Thereupon counsel for the City recalled the witness and introduced in evidence a daily training bulletin which the Captain said he had handed counsel, and which provides, in part, under the caption 'How to Direct Traffic'; 'However, at congested intersections it is often necessary to assume emergency control pending arrival of a 'TSR' car.' "Methods of control: It is often dangerous to attempt to direct traffic in opposition to a defective signal. Mortorists may become confused by conflicting directions of the mechanic signal and those given by the officer, and may cause an accident or further congestion.

"When an officer observes a defective signal which is causing congestion, he should notify the Complaint Board of the situation and turn off or cover the signals. The officer can then direct traffic with less danger than when the signal and the officer are in conflict." * * *

"Semaphore: The older Acme or semaphore and two-light type signal controller boxes can usually be opened with an ordinary field telephone key. To turn off the signal the switch marked 'Fold' should be depressed until the semaphore arms are recessed and then the lower dial turned to the 'Off' position. If the arms do not fold, they can be pulled down manually after the dail has been set as 'Off.'

"Where only the semaphore arms are faulty, and it is desired to continue use of the signal lights, the arms may be recessed by depressing the 'Fold' switch, and turning the upper control knob from 'Armslights' to 'Lights.' This will prevent shutting off the entire signal as would be done with the lower dial. The normal traffic cycle and be continued and controlled by the lights only.

"Covering defective signals: In the event that no key to the control box is available, some signals may be covered with jackets, newspapers, sacks, or any other available materials." The witness also said that his former testimony referred to this training bulletin and that the officers have no authority to go into the boxes to do anything to them, that they are instructed not to do so, that they are not allowed to change the timing device or in any way interfere with the operation of the signals. He also explained that he meant the officers could not open the box for purpose of adjusting or changing the operation, but that they had authority and were instructed to open the box and turn the signal off entirely. He also said he thought Allen's working hours were 6:00 p. m. to 2:00 a. m. and that an officer who has extended beyond his normal tour of duty would be required to take the action that is indicated...