Washington v. City and County of San Francisco

• Decision Date: 17 February 1954
• Citation: 123 Cal.App.2d 235,266 P.2d 828
• Court: California Court of Appeals Court of Appeals
• Parties: WASHINGTON v. CITY AND COUNTY OF SAN FRANCISCO. Civ. 15655.

Page 828

266 P.2d 828

123 Cal.App.2d 235

WASHINGTON v. CITY AND COUNTY OF SAN FRANCISCO.

Civ. 15655.

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

Feb. 17, 1954.

Hearing Denied April 14, 1954.

Dion R. Holm, City Atty. of City and County of San Francisco, Thomas M. O'Connor, Deputy City Atty., San Francisco, for appellant.

Keith, Creede & Sedgwick, San Francisco, for respondent.

FINLEY, Justice pro tem.

This is the second appeal in this case. The first was taken by plaintiff and resulted in this court setting aside a judgment for defendant notwithstanding the verdict for plaintiff and is reported in 111 Cal.App.2d 368, 244 P.2d 774. Defendant then moved for a new trial, which motion was denied, and judgment was entered upon the verdict for plaintiff. Defendant appeals from this judgment on the ground that certain instructions not warranted by the evidence were given to the jury.

Appellant's police car, an emergency vehicle, was proceeding north on Divisadero Street. At the intersection of Divisadero with Bush Street the police car collided with a Hudson automobile traveling easterly on Bush Street and driven by one Melvin Garner. The impact carried the vehicles onto the sidewalk at the northeast corner of the intersection where they struck and injured respondent.

The only point raised here concerns the propriety of giving five instructions which, as stated above, appellant claims were not warranted by the evidence.

The first two instructions complained of set forth in substance the provisions of section 454 of the Vehicle Code and the duty of the driver of an emergency vehicle when confronted with a situation similar to that with which the initially non-negligent person is confronted under the last clear chance doctrine. The next two instructions, in effect, charged the jury that the question of whether the police car was being driven in response to an emergency call was a question of fact for them. The fifth instruction states, in effect, that it was a question of fact for the jury whether the vehicle was displaying a red light and was sounding its siren at the time of the collision.

Appellant makes no claim that the instructions complained of are not correct statements of law, so we will not set them forth here. As to the first two instructions, its position is that there was no evidence that the officer driving the police car did anything which would constitute negligence were it not for the exemption accorded drivers of emergency vehicles under the provisions of section 454 of the Vehicle Code, and that there was no evidence that the officer had either the means or the opportunity to prevent the collision after seeing the Garner car. To put it another way, appellant contends that there was no evidence that the officer driving the police car had a last clear chance to avoid the collision.

In considering the testimony with of view to determining whether, as a matter of law, there was sufficient evidence to justify the court in giving the instructions complained of, this testimony must be considered in a light most favorable to respondent, for in order to find that the giving of any certain instruction was not warranted by the evidence, the court must find that, as a matter of law, there is in the record not even slight or inconclusive evidence on the point covered by the instruction. In 24 Cal.Jur., p. 832, the rule is stated as follows: 'In order to warrant the giving of an instruction it is not necessary that the evidence upon an issue be clear and convincing, it being sufficient if there be slight or, at least, some evidence upon the issue. Even though the evidence may not be sufficient to sustain the cause of action or defense to which an instruction applies, a reversal may not be had if the evidence on other defenses is sufficient to sustain the verdict.' (Emphasis added.)

And in 53 Am.Jur. p. 457: 'In determining whether there is evidence that will warrant an instruction, the court does not pass on the weight and sufficiency of the evidence. It is not error to submit an instruction covering a theory advanced by a party if there is any evidence on which to base it, although it may be slight and inconclusive, or opposed to the preponderance of the evidence.' Numerous cases are cited in these volumes in support of the rule as stated. See, also, Brandes v. Rucker-Fuller Desk Co., 102 Cal.App. 221, 282 P. 1009; and Lowe v. Lee, 95 Cal.App.2d 685, 213 P.2d 767.

The testimony of the witnesses in this case places the speed of the police car at between 30 and 60 miles per hour just before reaching or at the intersection, and the speed of the Garner car at between 20 and 50 miles per hour. The evidence as to when the cars entered the intersection varies from testimony that they entered at or about the same time to testimony that the Garner car had entered the intersection while the police car was still about five to ten feet away.

Garner testified that he did not see the police car until about the instant of the collision. The officer who was driving the police car was killed, but the testimony of two of the three other officers who were passengers in the police car varied as to when each saw the Garner car. One said it was when the police car was from 10 to 15 feet south of the south crosswalk on Divisadero and when the Garner car was approximately the same distance on the west side of the crosswalk on Bush. Another said that when he first saw the Garner car it was about 10 feet from the property line on the west side of Divisadero Street, and at the same time the police car was adjacent to the property line on the south side of Bush Street. There was testimony that the police car was in second gear and that from a distance of 55 feet south of the southerly curb line of Bush Street there was an unobstructed view over the last 120 feet of the westerly approach to the intersection, which distance increased as the police car approached nearer to the intersection.

Viewing the testimony above outlined most favorably to respondent, as we must, we cannot say, as a matter of law, that the jury could not have legitimately believed that the police car approached the intersection in second gear at a speed of 30 miles per hour; that from a point 55 feet south of the southerly curb line of Bush Street the driver had an unobstructed view of the last 120 feet of the westerly approach to the intersection, and by the exercise of ordinary care could have and should have seen the Garner car traveling on Bush Street at anywhere between 30 to 50 miles an hour; that it could have been observed that Garner, the driver, did not see the police car and was making no effort to slow down or stop and was proceeding either that much faster than the police car or was that much nearer the intersection that it could reasonably have appeared probable that h...