Pagels v. City and County of San Francisco

• Citation: 286 P.2d 877,135 Cal.App.2d 152
• Court: California Court of Appeals Court of Appeals
• Decision Date: 22 August 1955
• Parties: Leadora O. PAGELS et al., Plaintiffs, Leadora O. Pagels and Evelyn Eilenberger, Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO., etc., et al., Defendants, City and County of San Francisco, etc., Defendant and Respondent. Civ. 16356.

Page 877

286 P.2d 877

135 Cal.App.2d 152

Leadora O. PAGELS et al., Plaintiffs, Leadora O. Pagels and Evelyn Eilenberger, Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO., etc., et al., Defendants, City and County of San Francisco, etc., Defendant and Respondent.

Civ. 16356.

District Court of Appeal, First District, Division 1, California.

Aug. 22, 1955.

As Amended on Denial of Rehearing Sept. 21, 1955.

Hearing Denied Oct. 19, 1955.

Philander Brooks Beadle, Morton L. Silvers, San Francisco, for appellants.

Dion R. Holm, City Atty. of the City and County of San Francisco, Robert M. Desky, Deputy City Atty., San Francisco, for respondent.

BRAY, Justice.

Plaintiffs appeal from a judgment of nonsuit based upon plaintiffs' opening statement.

Question Presented.

Does a police officer engaged in a lawful chase have a duty to sound the siren and flash the red light when his patrol car is so equipped, in order to warn drivers of other cars of the approach of the pursued car?

Opening Statement.

Police Officer Creeden, driving a black, unmarked police car equipped with proper siren and red light, observed at approximately Eighth Avenue and Fulton Street in San Francisco a Buick with license plates so bent as to be difficult to read. The Buick driver, disobeying the officer's signal to pull to the curb, speeded up Eighth Avenue. The officer followed and the chase covered several blocks and on several streets. As the cars approached the intersection of Seventh Avenue and Clement Street they were going between 60 and 65 miles an hour, and the police car was approximately 30 feet behind the other car. That location was in a shopping district where traffic was heavy. Crossing the intersection at a speed in excess of 60 miles an hour in heavy traffic, the pursued car followed closely by the police car continued a short distance down the block. There a car was pulling out of a supermarket. The pursued car sideswiped it, glanced off and then sideswiped a second car, bounced off and sideswiped a third car on the other side of the street. It then ricocheted head-on into the car in which plaintiffs were riding, seriously injuring plaintiffs. The police car was able to avoid contact with any of the cars. The police car's red light was not flashed and the siren was not sounded at all, or if sounded, was so weak and inaudible as not to be heard by anyone in its area.

Duty.

Plaintiffs contend that it was the duty of the operator of the police car to sound the siren and flash the light so as to give other cars on the street an opportunity to clear it and that as this duty was not performed, there was a question of fact for the jury as to whether the ultimate collision would have been avoided or the chain of causation broken, had such action been taken.

Section 454, Vehicle Code, provides in effect that the driver of a police car pursuing an actual or suspected violator of the law, is exempt from the normal rules of the road if he sounds a siren as may reasonably be necessary and displays a lighted red lamp visible from the front. However, such drivers are not relieved '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.'

In Draper v. City of Los Angeles, 91 Cal.App.2d 315, 205 P.2d 46, 47, petition for hearing by Supreme Court denied the police car was pursuing a car which had disregarded a boulevard stop. In crossing an intersection the pursued car, going about 60 to 70 miles an hour, struck the plaintiff's car. During the chase the police car did not approach the pursued car closer than 275 feet, and as the police car approached the intersection it slowed down and parked at the curb at the intersection. The plaintiffs claimed (1) that it was negligence for the police car not to be equipped with a siren, and (2) that the question whether the failure to sound a siren was a proximate cause of the accident should have been submitted to the jury. The court held that neither contention was sustainable. As to the first contention the court pointed out that section 671, Vehicle Code, provided "Any authorized emergency vehicle may be equipped * * *" with a siren; that section 454 grants a privilege of exemption, if the vehicle is so equipped, and that under neither section is the vehicle required to be so equipped, and that failure to have the car equipped with a siren did not constitute negligence. As to the second contention the court said that it was not reasonably or at all necessary for the officers to give warning of their approach to the intersection as the undisputed evidence showed that they intended to, and did stop at the intersection. 'The officers, of course, were not required to warn pedestrians or other drivers to keep out of the way of the Pratt car [the pursued car]. Pratt's actions were distinct from theirs and placed no responsibility upon them. It is true that he was endeavoring to escape from them and for that reason, perhaps, was driving recklessly but that was his affair, not theirs. Although the pursuit no doubt contributed somewhat to his reckless driving, the officers were under no duty to allow him to make a leisurely escape. There was no evidence whatever that they were endeavoring at the time to force his car to the curb. They owed no duty to plaintiffs...