Siburg v. Johnson

• Decision Date: 17 April 1968
• Parties: Kent SIBURG, Respondent and Cross-Appellant, v. Wayne Lyman JOHNSON, City of Grants Pass, Cross-Respondents, Roy Eames, Robert Casey, Carl Dallas, Hugh McKinley, Eldon Everton and Electric Corporation, a corporation, Defendants, Charles Brunell, Robert Gass, Appellants.
• Court: Oregon Supreme Court

Page 865

439 P.2d 865

249 Or. 556

Kent SIBURG, Respondent and Cross-Appellant, v. Wayne Lyman JOHNSON, City of Grants Pass, Cross-Respondents Roy Eames, Robert Casey, Carl Dallas, Hugh McKinley, Eldon Everton and Electric Corporation, a corporation, Defendants Charles Brunell, Robert Gass, Appellants.

Supreme Court of Oregon, In Banc.

Argued and Submitted April 3, 1967.

Decided April 17, 1968.

R. Gene Smith, Grants Pass, argued the cause for appellants Charles Brunell and Robert Gass, and cross-respondent, City of Grants Pass. With him on the briefs was Gene L. Brown, Grants Pass.

Ervin B. Hogan, Medford, argued the cause for respondent and cross-appellant, Kent Siburg. With him on the brief were L. A. Merryman, and Frohnmayer, Lowry & Deatherage, Medford.

Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE and LUSK, JJ.

McALLISTER, Justice.

This is a damage action for personal injuries resulting from the collision in Grants Pass of a pickup in which plaintiff was riding and a city fire truck. The jury exonerated the driver of the pickup, but found for plaintiff against the fireman driving the truck and his superior officer who was riding in the cab with the driver. ¹

Viewed in the light most favorable to the plaintiff, the evidence tends to prove the following facts.

The plaintiff Siburg was a passenger in a pickup truck being driven by defendant Johnson in a southerly direction on Sixth Street in Grants Pass. Plaintiff was seated on the right side and one Wesley Parks was seated in the middle. The pickup was equipped with two seat belts, Johnson was using one, but the passenger's seat belt was not in use.

Sixth Street was a one-way street, with four traffic lanes which carried the southbound traffic of Highway 99. As Johnson approached the intersection of D Street the traffic control signal was red for traffic on Sixth Street. Vehicles were stopped in each of the traffic lanes except the lane to the left of the center line in which Johnson was driving, which was clear.

When Johnson was about 50 feet from the intersection, the traffic light turned green. Johnson had anticipated that the light would turn green for him and had not reduced his speed appreciably as he approached the intersection, and was traveling between 20 and 25 miles per hour. Johnson sensed danger when he noticed that the vehicles stopped for the red light did not proceed when it turned green and placed his foot on the brake pedal. He had no recollection of applying the brakes, but skid marks left by the pickup extended from the north crosswalk to the point of impact. Neither Johnson nor Parks saw or heard the fire truck before the impact. Siburg had no recollection of any of the events leading up to the accident.

The fire truck was responding to a telephone call reporting a possible flue fire at a residence east of the scene of the accident.

The truck was being driven by the defendant Brunell, a fireman in the city fire department. Lieutenant Gass, who was in charge of the department in the absence of the fire chief, was riding in the cab with Brunell. The truck was traveling east on D Street as it approached the intersection of Sixth. Both Brunell and Gass saw the traffic light turn from green to yellow when the truck was west of Sixth Street a distance estimated from 50 to 150 feet. Gass realized that the light would be red before the truck cleared the intersection. Gass testified that the fire truck slowed and then accelerated as it approached the intersection. Brunell testified that he had his foot on the brake as he approached the intersection, but had his foot back on the throttle as he entered the intersection. According to various witnesses the speed of the truck as it entered the intersection was from 15 to 40 miles per hour. As a result of the accident, plaintiff sustained multiple injuries which resulted in his permanent and total disability.

Defendants' brief contains numerous assignments of error, which raise the following principal questions:

(1) Was there sufficient evidence to support a finding by the jury that the siren on the fire truck was not sounded as it approached and entered the intersection?

(2) Did Lieutenant Gass have any duty with reference to the operation of the fire truck while he was riding in the cab alongside the driver Brunell?

(3) Is the duty of a driver of an emergency vehicle limited to the sounding of a siren and the display of the required lights, or does he have a duty to drive with reasonable care for the safety of all persons using the highway?

(4) Is a passenger in a motor vehicle who fails to fasten an available seat belt guilty of contributory negligence, and if so, did the evidence in this case make a jury question on this issue?

There was a conflict in the testimony as to whether the siren on the fire truck was sounded, and if so, for how long. Most of the witnesses testified that the siren was being sounded at the time of the accident and had been sounded for a considerable time prior thereto. However, one witness testified that she watched the fire truck for about two blocks before it reached Sixth Street, and although she was listening for the siren, she did not hear it. ² No siren was heard by the defendant Johnson, or the witness Parks who was riding in the pickup. We hold that there was sufficient evidence to support a finding by the jury that the siren was not being sounded as the fire truck approached and entered the intersection.

We turn next to the question of Lieutenant Gass's personal liability for the alleged negligent operation of the fire truck. Plaintiff's complaint charged both Lieutenant Gass and the driver, Brunell, with negligent operation of the fire truck in the usual particulars, i.e., excessive speed, inadequate lookout and control, failure to stop for the traffic light, and failure to yield the right of way. Lieutenant Gass testified that he was in charge of the fire truck when the collision occurred, and that the driver of the truck was under his direction and control.

The law is well settled that the negligence of the driver, Brunell, cannot be imputed to Lieutenant Gass, and that Lieutenant Gass is not liable for Brunell's negligence on any theory of vicarious responsibility. The liability of a superior servant such as Lieutenant Gass must be predicated on his own negligence in failing to exercise his right to control a driver who is driving in a negligent manner. The leading case is Dowler v. Johnson, 225 N.Y. 39, 121 N.E. 487--488, 3 A.L.R. 146 (1918), where in an opinion written by Mr. Justice Cardozo the court said:

'* * * We do not doubt the rule invoked by counsel for the defendant, and sustained by superabundant citations, that public officers are not liable for the negligence of their subordinates unless they co-operate in the act complained of, or direct or encourage it. * * * That is at least the general rule, and, if it is subject to any other qualifications, they are not now material. But here the very question is whether the defendant did direct or encourage the negligent act or personally co-operate in it. Undoubtedly he is not liable for the negligence of the driver on the theory of Respondeat superior. The relation between them was not that of master and servant. If he had been out of the car at the time of the accident, no one would suggest that he must answer for the driver's wrong. Even his presence in the car would be insufficient of itself and in all circumstances to charge him with liability. There must have been command or co-operation. (citing authorities) But ratification may be equivalent to command, and co-operation may be inferred from acquiescence where there is power to restrain. * * * There was the right to restrain here, for the driver was subject to the defendant's orders * * *; but the right is of no importance, unless the omission to exercise it was unreasonable. We cannot say whether the inference of such an omission is legitimate till the whole story has been told. We must see the whole picture. For the purpose of this appeal, it is enough that the defendant is not exonerated as of course because the man at the helm was not his servant. One cannot let oneself be driven at breakneck speed through city streets, and charge the whole guilt upon the driver who has done one's tacit bidding.'

In a more recent case, Nadeau v. Melin, 260 Minn. 369, 110 N.W.2d 29, 38 (1961), the Supreme Court of Minnesota after reviewing the authorities stated the prevailing rule as follows:

'It would seem, therefore, that the better rule, followed by a great majority of the courts which have considered the question, is that the negligence of the driver of an automobile is not to be imputed to a fellow employee riding with him, even though he has the right to control the manner of operation of the automobile, in the absence of a relationship which would establish vicarious liability.

The right to control does have a vital bearing, however, on the determination of the independent negligence of such passenger. Failure to exercise a control which he has, when it should have been exercised, may well constitute negligence on the part of the passenger, as well as other affirmative acts or failure to act when reasonable prudence would require it. * * *'

For similar statements see also, Vogler v. Jones, 199 Okl. 156, 186 P.2d 315 (1947); Veek v. Tacoma Suburban Lines, 49 Wash.2d 584, 304 P.2d 700, 704 (1956). Insofar as applicable, Bartholomew v. Oregonian Pub. Co., 188 Or. 407, 413, 216 P.2d 257 (1950), is in accord with the foregoing authorities.

Defendants cite Clough v. Schwartz, 94 N.H. 138, 48 A.2d 921 (1946), where it was held that the negligence of the driver of a fire truck could not be imputed to the plaintiff, a fire department lieutenant who was riding in the truck. We agree with what is there said about imputation of negligence between fellow servants. The case does not consider, however, any...