Spencer v. Schiffman

HOUSER, J.

From the record herein it appears that in response to an “emergency call” plaintiffs, who were police officers, were riding over and upon certain streets in the city of Los Angeles on a motorcycle which was being operated by plaintiff Delgado in the general direction toward the scene of an accident which theretofore had occurred. According to the testimony of one of the plaintiffs, the purpose of such “emergency call” was that of “investigating the facts of the accident . . . and to render all the aid possible”. Before reaching the intersection of certain streets the said motorcycle was traveling at the rate of thirty-seven miles per hour, but on entering the said intersection the speed of the motorcycle was reduced to a rate of twenty to twenty-five miles per hour, at which speed it collided with an automobile which at said time and place was operated by defendant Schiffman. As a result of said collision each of the plaintiffs sustained certain physical

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injuries for which, by appropriate action, he sought to recover damages from defendant. For the purposes of the trial such actions were “consolidated”, and the evidence introduced in the one case was made applicable to the other. After the plaintiffs therein had introduced all their evidence, on motion presented by defendant, based upon the alleged negligence of plaintiffs, which, as contended by defendant, contributed directly and proximately to the happening of the accident, the trial court instructed the jury to, and the jury did, return verdicts in favor of defendant. It is from the ensuing judgments that the instant appeal is prosecuted.

In effect the principal point urged as a reason for reversal of the judgments is that the evidence was insufficient to show contributory negligence on the part of plaintiffs. As hereinbefore set forth,= the record herein discloses the fact not only that at the time when and the place where the collision occurred were plaintiffs driving their motorcycle at an unlawful rate of speed, approximately from twenty to twenty-five tidies per hour, but that, in addition thereto, with full knowledge on the part of each of the plaintiffs regarding the entire situation as applied particularly to defendant personally and the automobile which he was operating, no attempt was made by either of the plaintiffs prior to the happening of the accident to stop the motorcycle which they were driving. Apparently what the plaintiffs relied upon as a justification for their failure to attempt to stop the motorcycle and to avert or avoid the happening of the accident, was the fact that they were police officers and as such, in the performance of their official duty, were on an errand the object of which was to investigate the facts concerning an accident which theretofore had occurred and “to render all the aid possible”. It is clear that, ordinarily speaking, the ■ negligence of the plaintiffs was not only outstanding and that it contributed to the happening of the accident, but that unless by the “saving grace” of the provisions of some statute the plaintiffs were exempted from the ordinary rule of law which relates to the care which must be exercised by persons generally, the judgments rendered by the trial court should be affirmed. In the latter connection the only regulatory provision which is suggested by appellants as afford