Rutherford v. State

• Decision Date: 28 December 1979
• Docket Number: No. 3453,3453
• Citation: 605 P.2d 16
• Parties: Mickey Joe RUTHERFORD and Britta Rutherford, Appellants, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 16

605 P.2d 16

Mickey Joe RUTHERFORD and Britta Rutherford, Appellants, v. STATE of Alaska, Appellee.

No. 3453.

Supreme Court of Alaska.

Dec. 28, 1979.

James A. Parrish, Fairbanks, for appellant.

Stephen D. Cramer, Merdes, Schaible, Staley & DeLisio, Fairbanks, for appellee.

Before CONNOR, BOOCHEVER, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice.

DIMOND, Senior Justice.

OPINION

Alaska State Trooper Rollie Port was driving on Cushman Street in Fairbanks. He received a radio call regarding an automobile accident located approximately ten miles from Fairbanks. Port turned on his red lights and siren at about Sixth Avenue and Cushman, and increased his speed to about 35 miles an hour. As he approached the intersection of Third Avenue and Cushman, he slowed down to approximately 20 to 25 miles per hour and entered the intersection against a red traffic light.

Appellant Mickey Rutherford was traveling on Third Avenue, and since the light was green, he entered the intersection at Third Avenue and Cushman. His view, and also that of Port, was obstructed by a building located close to the intersection on the corner. Port did not see Rutherford's car until both vehicles were about ten feet from the intersection. There was a collision of the two vehicles and Rutherford was injured. He brought this action for damages against the appellee, State of Alaska. The jury returned a special verdict finding Trooper Port not negligent, but finding Rutherford negligent in the operation of his vehicle. Judgment was entered in favor of the state, and Rutherford has appealed.

During the trial, after all of the evidence had been presented, Rutherford moved for a directed verdict on the issue of Trooper Port's negligence, leaving for the jury the question of Rutherford's "contributory negligence," ¹ and appropriate damages. The trial judge denied this motion, as well as subsequent motions for a new trial and for a judgment notwithstanding the verdict.

Port was driving an emergency vehicle, responding to an emergency call. Because of this, he was entitled to "disregard a statute, regulation or ordinance governing the operation of movement of a vehicle." ² This right, however, is subject to conditions. One of them is that Port was not relieved of his duty "to drive with due regard for the safety of all persons." ³ Nor did this right to disregard traffic laws, ordinances and regulations in these circumstances extend to "protect him from the consequences of his reckless disregard for the safety of others." ⁴

Port was thus authorized to proceed through the intersection against a red stop light, but he had the duty to do so with due regard for the safety of other persons. The question presented is what a reasonable, prudent emergency driver would do under all of the circumstances, including that of the emergency. ⁵

Rutherford contends that the court erred in not granting his motion for a directed verdict to the effect that Trooper Port was negligent. We have stated the appropriate standard for review on this point as follows:

It is well established that the proper role of this court, on review of motions for directed verdict or for judgment notwithstanding the verdict, is not to weigh conflicting evidence or judge of the credibility of the witnesses, but is rather to determine whether the evidence, when viewed in the light most favorable to the non-moving party, is such that reasonable men could not differ in their judgment. ⁶

Viewing the facts in the light most favorable to the non-moving party (the state), we have this situation:

(1) Trooper Port went through a red light at a speed of 20 to 25 miles per hour. ⁷

(2) Port's view of cross-traffic entering the intersection was obstructed by a building close to the corner, to the extent that Port himself testified that he might have avoided the accident only by slowing to ten miles an hour or less. The passenger in the car with Port, Trooper Biesemeyer, testified that in order to avoid traffic crossing Cushman Street on a green light, Port's car would have had to slow virtually to a stop at that intersection. Trooper Biesemeyer testified that

you practically have to come to a stop in the downtown intersection when you're when you've got a blind intersection and you're running against a red light before you could proceed through the intersection(.)

(3) Port was responding to a notice of an accident. Both he and Biesemeyer testified that the time lost in slowing to a safer speed at the intersection where the accident occurred would not have significantly delayed their arrival at the accident scene about ten miles away.

(4) There was no testimony that Rutherford entered the intersection at an excessive rate of speed.

(5) Port had turned on his siren about three blocks from the intersection in question. While the testimony varied somewhat, Rutherford first heard the siren slightly before entering the intersection. He testified that, as he came from behind the corner of the building and entered the intersection, he became aware of the siren. ⁸ He also stated that he looked in all directions to ascertain the source of the siren and then saw the trooper's car approaching "at a high rate of speed, and bearing sharply to the left, I guess it was an attempt to get around me." At that time the trooper's vehicle was about 30 feet from his vehicle, and a period of "perhaps one and one-half maybe two seconds" had elapsed since he first heard the siren.

(6) At the time of the accident, the temperature was about twenty-seven degrees above zero, and there were patches of snow and ice on the street.

Questions of negligence are ordinarily left to the jury. From the evidence in this case, however, the conclusion is inescapable that Trooper Port entered a "blind," hazardous intersection against a red light, and at a speed which he acknowledged was too great to allow him to avoid oncoming crossing traffic. This was hardly a "reasonable, necessary measure to alleviate the emergency" to which he was responding. See Torres v. City of Los Angeles, 58 Cal.2d 35, 22 Cal.Rptr. 866, 874, 372 P.2d 906, 914 (1962). There were no exigencies or other facts presented which justified his actions as a matter of public policy. Viewing the evidence in the light most favorable to the state, we find that reasonable minds could not differ in their judgment and could only conclude that Trooper Port was negligent. ⁹

The trial court left for determination by the jury the question of whether there was any negligence on the part of Trooper Port. This was error. The court should have granted Rutherford's motion for directed verdict on the question of Port's negligence and instructed the jury that Port was negligent as a matter of law.

This does not mean, however, that Rutherford should recover the full amount of damages that he established at the trial. Although hardly conclusive, there was sufficient evidence presented to permit the jury to have found that Rutherford heard or should have heard the siren as he approached the intersection, and should have yielded the right-of-way to the oncoming police vehicle by stopping instead of entering the intersection. Thus, there was evidence that there may have been negligence on Rutherford's part, in addition to the evidence of negligence on the part of Trooper Port. The case will have to be remanded for a new trial in order for the jury to determine whether Rutherford was negligent and, if so, to apply comparative negligence principles, apportion the degrees of negligence attributable to Rutherford and to Trooper Port, and assess damages accordingly. ¹⁰

The trial court denied Rutherford's request to have admitted into evidence two memoranda that had been prepared by state troopers who had investigated the accident. Rutherford claims this ruling is error. We choose to address this evidentiary issue, since it will be presented on remand should Rutherford seek to introduce the memoranda into evidence at a new trial.

One memorandum was from Corporal Edwin G. Close to Sergeant Lowell D. Parker, with a copy to Col. M. E. Dankworth, dated October 11, 1972. This document summarizes the facts of the accident and concludes:

Due to the foregoing it appears both Trooper Port and Micky (sic) Rutherford contributed to the causes of the accident. Trooper Port could have avoided the accident had he approached the difficult intersection at a slower speed that would have enabled him to stop for any cross traffic crossing pursuant to a green traffic light; and Micky Rutherford could have avoided the accident had he stopped or even slowed immediately to pin point the emergency vehicle he heard and yield to it as required by 13 AAC 02.140.

Trooper Port complied with 13 AAC 02.505 with the exception of showing a lack of sound judgment in approaching the difficult cross intersection at approximately 30 M.P.H. against the red light.

I recommend that Trooper Port be given a written letter of reprimand.

The other memorandum was from Sergeant Parker to Lieutenant Ralph E. Shafer, dated October 13, 1972. It also describes the factual context of the accident, though in somewhat different language, and concludes:

It is my opinion that the responsibility for the accident lies with both drivers. The accident could have been avoided if Mr. Rutherford, the driver of the second vehicle, would have attempted to determine where the emergency vehicle was, upon hearing the siren, before entering the intersection. This puts Mr. Rutherford in violation of 13 AAC 02.140 as he stated he had heard the siren before entering the intersection.

Trooper Port was complying with the requirements of 13 AAC 02.585 with the exception of paragraph (e). This paragraph does not relieve the driver of an emergency vehicle from his duty to drive with due regard for the safety of all persons, nor protect him from the consequences of his reckless disregard for the safety of others.

I do not feel that Trooper Port was...