Witt v. Jackson

• Citation: 57 Cal.2d 57,17 Cal.Rptr. 369,366 P.2d 641
• Parties: , 366 P.2d 641 James Robert WITT et al., Plaintiffs and Appellants, v. Raymond Lester JACKSON, Defendant and Respondent; City of Los Angeles, Intervener and Appellant. L. A. 26484.
• Decision Date: 04 December 1961
• Court: United States State Supreme Court (California)

Page 369

17 Cal.Rptr. 369

57 Cal.2d 57, 366 P.2d 641

James Robert WITT et al., Plaintiffs and Appellants, v. Raymond Lester JACKSON, Defendant and Respondent City of Los Angeles, Intervener and Appellant.

L. A. 26484.

Supreme Court of California, In Bank.

Dec. 4, 1961.

Murray Jackson, Los Angeles, for plaintiffs and appellants.

Roger Arnebergh, City Atty., Bourke Jones, Asst. City Atty., Edwin F. Shinn and Sanford M. Gage, Deputy City Attys., Los Angeles, for intervener and appellant.

Spray, Gould & Bowers, Los Angeles, and Jean Wunderlich, North Hollywood, for defendant and respondent.

TRAYNOR, Justice.

This action was brought by James Witt and Julius Grossman to recover damages for personal injuries sustained when the automobile in which they were riding was struck from the rear by one owned and operated by defendant Jackson. The City of Los Angeles, plaintiffs' employer and owner of the vehicle that was being driven by Witt at the time of the accident, intervened to recover for the damage to its automobile and for workmen's compensation benefits and medical expenses paid to plaintiffs. Judgment was entered on jury verdicts for defendant and against both plaintiffs and the city. Plaintiffs and intervenor appeal.

The accident occurred in a posted 45 mile per hour speed zone on Sepulveda Boulevard in Los Angeles at approximately 2:30 a. m. on March 3, 1958. Sepulveda Boulevard is a straight north and south four-lane highway with a double white line in the center. The impact occurred in the northbound lane adjacent to the double white line. Both plaintiffs were in uniform and were on duty as police officers. They were in a marked, black and white police car with two red lights on the roof, which shone toward front and rear when turned on.

According to plaintiffs' version of the accident, they were traveling north on Sepulveda Boulevard in the lane next to the double white line when they saw a 1957 Dodge traveling ahead of them at approximately 20 to 25 miles per hour in the right lane for northbound traffic. Because it was moving so slowly when traffic conditions were light, plaintiffs suspected that the driver was under the influence of alcohol. Witt pulled the police car alongside the Dodge, and in accordance with normal police procedures, Grossman flashed his flashlight at the driver of the Dodge to attract his attention. As the Dodge was moving off the roadway and stopping, Witt slowed down to get behind it, looked in the rearview mirror and observed headlights moving rapidly toward him, and heard brakes or tires screeching. The police car was struck from the rear by defendant's car. Witt testified on direct examination that he turned on the red roof lights 'just prior' to pulling alongside the Dodge and estimated that the impact occurred 5 to 10 seconds thereafter. He testified on crossexamination that he turned them on when he was approximately 50 feet behind the Dodge. He had stated in a prior admission that he turned them on after he had pulled alongside the Dodge.

Defendant testified that he was a California highway patrolman, returning home from an evening at his brother's home. Although he was in uniform, he was not on duty. He admitted drinking two glasses of beer at lunch during the preceding afternoon and about a quart of beer at his brother's home, which was located approximately five miles from the scene of the accident. As he was traveling north on Sepulveda Boulevard in the lane next to the double white line at approximately 35 miles per hour, he first observed the taillights of what proved to be plaintiffs' car in the right hand lane. He observed it change to the lane in which he was traveling when he was approximately 100 feet behind it. He applied his brakes as soon as the red roof lights of the police car went on. He estimated that he was then 50 to 75 feet behind it.

Plaintiffs challenge the instructions relating to the contributory negligence of plaintiff Witt. In addition to giving the standard instruction on the subject of contributory negligence, the trial court, at defendant's request, instructed the jury in the language of Vehicle Code, sections 544, subdivision (c) (now § 22109) and 526, subdivision (a) (now § 21658). 'No person shall stop or suddenly decrease the speed of a vehicle on a highway without first giving an appropriate signal in the manner provided in this chapter to the driver of any vehicle immediately to the rear when there is opportunity to give such signal.' (§ 544, subd. (c).) 'A vehicle shall be driven as nearly as practical entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.' (§ 526, subd. (a).) Immediately following the giving of these instructions, at plaintiffs' request the court instructed the jury that conduct in violation of a section of the Vehicle Code is negligence as a matter of law.

Plaintiffs object to the latter instruction because it was not qualified by a statement that a violation of a statutory standard creates only a presumption of negligence that may be rebutted by evidence of justification or excuse. (See Alarid v. Vanier, 50 Cal.2d 617, 621, 327 P.2d 897.) Plaintiffs, however, requested the instruction of which they complain and it was incumbent upon them to offer any desired modification. (Ornales v. Wigger, 35 Cal. 2d 474, 479, 218 P.2d 531; Townsend v. Butterfield, 198 Cal. 564, 569, 143 P. 760.) Moreover, there is nothing in the record to suggest a justification or excuse for Witt's violation of either Vehicle Code provision except that he was a law enforcement officer investigating a driver suspected of intoxication. Whether this circumstance justified violating statutory standards of conduct was presented to the jury in an instruction on Vehicle Code, section 454, which grants exemptions to authorized emergency vehicles under certain conditions.

Plaintiffs contend that the court should not have given a general instruction on contributory negligence or the instructions on Vehicle Code, sections 544 and 526, on the ground that there is no substantial evidence of contributory negligence.

There is conflicting evidence as to whether Witt changed lanes. Defendant testified that Witt did so when the cars were only about 100 feet or six car lengths apart. Witt testified that he first saw defendant's headlights in his rear-view mirror about three or four seconds before the impact. The jury could therefore infer that Witt had changed lanes and moved into the path of defendant's car without determining whether he could do so with safety.

There is also substantial evidence to justify the instruction on section 544, which requires an appropriate signal before a sudden decrease in speed. Witt testified that after he had drawn alongside the Dodge he 'started to decelerate so that I could pull behind the car that we were pulling over.' The operator of the Dodge testified that after he saw the flash of Grossman's flashlight he drove off the roadway to the right and stopped. It could be inferred that Witt decelerated rapidly to get behind the Dodge. Defendant testified that after the police car moved into his lane its brake lights went on, that when he was approximately 50 to 75 feet behind it its red roof lights went on, and that he then attempted to stop. It was for the jury to determine in the light of this evidence whether the brake lights and roof lights constituted an 'appropriate signal' within the meaning of section 544, subdivision (c).

At plaintiffs' request the trial court gave an instruction on Vehicle Code, section 454 (now §§ 21055, 21056), which exempts drivers of authorized emergency vehicles from observing specified provisions of the Vehicle Code (including §§ 544, subd. (c) and 526, subd. (a)) under certain conditions. ¹ Plaintiffs maintain that all of the conditions set forth in this section were met and that the trial court was therefore precluded as a matter of law from submitting the defense of contributory negligence to the jury.

The court instructed the jury that the police car was an authorized emergency vehicle. Although it may be assumed that the other conditions of section 454 were met, the jury still had to determine whether Witt operated the vehicle 'with due regard for the safety of all persons using the highway.'

The 'due regard' clause of section 454 requires the operator of an emergency vehicle to give a suitable warning to afford other users of public highways an opportunity to yield the right of way. (Lucas v. City of Los Angeles, 10 Cal.2d 476, 483, 75 P.2d 599; Raynor v. City of Arcata, 11 Cal.2d 113, 117, 77 P.2d 1054; Reed v. Simpson, 32 Cal.2d 444, 450 196 P.2d 895.) An operator of an emergency vehicle does not meet the requirements of the 'due regard' clause if he does not give the required warning until a collision is inevitable. In view of the conflicting evidence as to whether Witt turned on the roof light soon enough to warn defendant to stop his vehicle or yield the right of way, the question whether Witt showed 'due regard for the safety of all persons using the highway' was properly submitted to the jury. (See West v. City of San Diego, 54 Cal.2d 469, 6 Cal.Rptr. 289, 353 P.2d 929; Reed v. City of San Diego, 77 Cal.App.2d 860, 867-868, 177 P.2d 21.)

Plaintiffs complain of an instruction that plaintiffs had the burden of proving that the negligence of defendant was the proximate cause of plaintiffs' injuries. The use of the definite instead of the indefinite article was not prejudicial in the light of the instruction that the acts and omissions of two or more persons may concur in causing an injury and that each such act or omission is regarded as a proximate cause. (Squier v. Davis Standard Bread Co., 181 Cal. 533, 537, 185 P. 391; Hellman v. Los Angeles Ry. Corp., 135 Cal.App. 627, 645, 27 P.2d 946, 28 P.2d 384; Dieterle v. Yellow Cab Co., 53 Cal.App.2d 691, 694-696, 128...