Stucker v. McMains

[36]

YORK, P. J.

Joseph A. Stueker, a member of the California Highway Patrol, met his death on January 7, 1943, while directing traffic at the intersection of San Fernando Road and Sunland Boulevard, in the city of Los Angeles, when his motorcycle was struck by a 1941 Ford dump truck owned by defendant corporation and being operated by defendant McMains. The surviving wife of decedent, individually and as guardian ad litem for her minor son, by the instant action alleging negligence on the part of defendants, seeks the recovery of damages for loss of services, support, society, companionship and protection. The answer denied the allegations of negligence and set up the special defense of contributory negligence on the part of decedent in the operation of his motorcycle at the time and place of the accident.

At the trial, plaintiffs relied on the theory that decedent, as a member of the California Highway Patrol, was operating an authorized emergency vehicle, as defined by section 44 of the Vehicle Code, and was responding to an emergency call at the time in question, and that defendant McMains by his failure to yield the right of way and otherwise comply with the requirements of section 554 of the Vehicle Code, was guilty of negligence which was the proximate cause of the collision.

The jury returned its verdict in favor of plaintiffs for $20,000, and from the judgment which followed defendants have perfected this appeal.

The evidence adduced at the trial herein reveals that on January 7, 1943, Officers Stueker and Condiff, both members of the California Highway Patrol, were instructed by their superior officer, Sergeant Clarence M. Martin, to escort a group of sixteen trucks, which was the first unit of a convoy of over one hundred army trucks. The two officers mounted their motorcycles at Adams Airport in Roscoe preparatory to leading the first contingent of the convoy over a route laid out to their destination at Camp Haan in Riverside County. They proceeded along Sherman Way and Vineland Avenue to the junction of the latter with Sunland Boulevard; thence east on Sunland, the two officers riding abreast in front of the convoy, until they were about 75 feet west of the intersection of Sunland and San Fernando Road, when Officer Stueker took the lead and entered the intersection about thirty feet in advance of Officer Condiff. Said intersection was about two miles from Adams Airport, their starting point. Officer Condiff testified that when they were about 100 to 150 feet