Torres v. City of Los Angeles

• Decision Date: 21 June 1962
• Citation: 58 Cal.2d 35,372 P.2d 906,22 Cal.Rptr. 866
• Court: California Supreme Court
• Parties: , 372 P.2d 906 Edith TORRES, a Minor, etc., et al., Plaintiffs and Respondents, v. CITY OF LOS ANGELES, Defendant and Appellant. Moses BOSKETT et al., Plaintiffs and Respondents, v. CITY OF LOS ANGELES, Defendant and Appellant. L. A. 26660, 26661.

Page 866

22 Cal.Rptr. 866

58 Cal.2d 35, 372 P.2d 906

Edith TORRES, a Minor, etc., et al., Plaintiffs and Respondents, v. CITY OF LOS ANGELES, Defendant and Appellant.

Moses BOSKETT et al., Plaintiffs and Respondents, v. CITY OF LOS ANGELES, Defendant and Appellant.

L. A. 26660, 26661.

Supreme Court of California, In Bank.

June 21, 1962.

Rehearing Denied July 18, 1962.

Roger Arnebergh, City Atty., Bourke Jones, Asst. City Atty., Herbert Hargrave and Weldon L. Weber, Deputy City Attys., for defendant and appellant.

Dryden, Harrington, Horgan & Swartz, Vernon G. Foster, James H. Davis, Zeman, Comsky & Fischer and David Combsky, Los Angeles, for plaintiffs and respondents.

Albert E. Nelson, Raoul D. Magana, David M. Harney, John Sloan, Robert E. Ford, Robert N. Stone, Los Angeles, and Ingemar E. Hoberg, San Francisco, as amici curiae on behalf of plaintiffs and respondents.

WHITE, Justice.

Defendant, City of Los Angeles, in two consolidated actions, appeals from judgments for personal injuries and a wrongful death caused by one of defendant's fire engines after it has collided at an intersection with another of defendant's fire engines while both were answering the same alarm.

The collision occurred at the intersection of San Pedro and Jefferson Streets on June 1, 1958. Engines No. 14 and 22 were following prearranged routes in response to an alarm turned in from a box located at 32nd and Trinity Streets. These routes are set forth in the rules and regulations of the fire department, with which the firemen drivers were familiar. Engine 14 was being driven west on Jefferson Street by auto fireman George Winchester. Engine 22, driven by auto fireman Raymond Reischl, was traveling north on San Pedro Street. The engines were both displaying lighted red lights and sounding their sirens. Winchester, who had responded several times to alarms from this box, was aware that Engine No. 22 would be responding to the same alarm. On previous occasions he had observed Engine No. 22 arrive at the intersection of Jefferson and San Pedro Streets after he had passed through the intersection.

Reischl knew that Engine 14 normally would respond to the alarm and that it would cross his own line of travel. He estimated that on a half-dozen to a dozen prior occasions when he had driven north on San Pedro, Engine 14 had used its same response pattern. On at least six prior occasions he had observed Engine 14 pass on Jefferson Street in front of him, usually when he was three blocks south of the Jefferson Street intersection. Reischl conceded that, to his knowledge, there are many factors which may delay the other engine from reaching the intersection as much as a half-minute or a minute; that there are situations which might result in a speed-up in the departure of his own engine and that he was aware of these possible time variations on the morning of the accident.

Due to the fact that noise produced by the siren and air horn of each engine makes it nearly impossible for the driver to hear the approach of other emergency units, each driver was instructed in training that he should anticipate that another emergency vehicle may enter the intersection simultaneously with his own and also that more than one piece of equipment may come from a single fire house so that when one truck passes in front of a driver, the hazard is not eliminated.

Fire department rules required each driver, when approaching an intersection in which the paths of emergency vehicles crossed, to bring their vehicles to a stop or near stop and that 'extreme caution shall be exercised and the apparatus brought to a complete stop if necessary' at all intersections, particularly where a stop signal was displayed.

Winchester testified that he entered the intersection from the east at approximately 20-25 miles per hour with his foot on the brake, that he made observation of the condition of traffic and observed the traffic signal at the intersection of San Pedro, which was green for easterly and westerly traffic. He did not observe Engine 22 until immediately before the impact.

Prior to the collision, Reischl driving Engine 22 had not observed Engine 14 pass in front of him as he had done on prior occasions. He approached the intersection from the south at a speed of about 40 miles per hour and entered it at a speed of 25-30 miles per hour at which time the signal was red for the direction in which he was going. The approach of Engine 14 from the right was first observed by the acting company officer of Engine 22, when the latter had reached a point about 50 feet south of the crosswalk at the south side of the intersection. Reischl was asked if he had looked to his right at any time between a point 100 feet back from the crosswalk at the intersection and the time that he arrived at the intersection. He replied: 'I can't say that I did or didn't.' When his deposition was taken, Reischl stated that 'If the rig had been there I would have seen it if I had looked.' Reischl also testified that he had not paid any attention to the signal and that 'We carry our own signal with us.'

Engine 14 hit the right rear of Engine 22, propelling it in a clockwise direction and causing it to collide with the Torres automobile which had pulled to the side of Jefferson Street and parked in obedience to the siren. The Torres automobile was in turn propelled into the Boskett automobile which had stopped for the same reason. The collision resulted in the death of Mrs. Torres, and injuries to Mr. Torres, their daughter, Edith, and both Mr. and Mrs. Boskett. The jury rendered judgments for the plaintiffs, totalling $186,500. Defendant does not assert that the verdict is not supported by substantial evidence.

The issues raised at the trial level and on this appeal involve claimed exemptions for municipalities from liabilities resulting from conduct which otherwise would constitute actionable negligence. Generally speaking, section 400 of the Vehicle Code (now Vehicle Code 1959, §§ 17000-17003) ¹ imposes liability upon a municipality for the negligent operation of a motor vehicle by an officer, agent or employee of the municipality. However, section 454 of the Vehicle Code (now Vehicle Code 1959, §§ 21055, 21056) provides:

'The driver of an authorized emergency vehicle shall be exempt from those provisions of this code herein set forth under the following conditions:

'(a) Said exemptions shall apply whenever any said vehicle is being driven in response to an emergency call or while engaged in rescue operations or when used in the immediate pursuit of an actual or suspected violator of the law, or when responding to but not upon returning from a fire alarm.

'(b) Said exemptions shall apply only when the driver of said vehicle sounds a siren as may be reasonably necessary and the vehicle displays a lighted red lamp visible from the front as a warning to others. Under the circumstances hereinabove stated, any said driver shall not be required to observe those regulations contained in Chapter 3 or in Chapters 6 to and including Chapter 13 of Division 9 or Section 604 of this code, but said exemptions shall not relieve the driver of any said vehicle 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.'

The trial court instructed the jury that liability may be predicated upon an act or acts outside of the exemptions contained in section 454. Defendant contends that this instruction was erroneous, and that it was also error for the trial court to refuse to instruct that pursuant to section 454 an operator of an emergency vehicle on an emergency run is exempt from all 'rules of the road.' ²

Defendant claims that it is the established law of this state that under section 454 no liability can be imposed upon a municipality for injuries resulting from the negligent operation of an emergency fire engine if the vehicle was then responding to an emergency call and was giving the statutory warning (sounding a siren and displaying a lighted red lamp), unless the operator arbitrarily exercised the privileges declared in section 454. ³ In support of this assertion, defendant cites, among other decisions Coltman v. City of Beverly Hills (1940), 40 Cal.App.2d 570, 105 P.2d 153. In that case two police vehicles responding to an emergency call with each sounding its siren, collided at a street intersection. One of the vehicles was knocked onto the sidewalk and struck a pedestrian who died as a result of the injuries thus sustained. The trial court gave judgment for the city in an action for wrongful death brought by the deceased's parents. The District Court of Appeal, in affirming the judgment without, however, citing any code section, held that Lucas v. City of Los Angeles (1938), 10 Cal.2d 476, 75 P.2d 599, was controlling and adopted the following language from page 486 of the Lucas opinion, 75 P.2d at page 604: 'Our conclusions from the foregoing are that when the operator of an emergency vehicle responding to an emergency call gives the statutory notice of his approach the employer is not liable for injuries to another, unless the operator has made an arbitrary exercise of these privileges. In such cases speed, right of way, and all other 'rules of the road' are out of the picture; the only questions of fact, insofar as the public owner is concerned, are first, whether there was an emergency call within the terms of the statute; second, whether the statutory warning was given, and third, whether there was an arbitrary exercise of these privileges.' (Emphasis added.)

Language excepting operators of emergency vehicles from 'rules of the road' crept into recent decisions in this state inadvertently. In Balthasar v. Pacific Elec. Ry. Co. (1921), 187 Cal. 302, 202 P. 37, 19 A.L.R. 452, it was claimed...