Byers v. Spicer

ALLEN, J.,

pro tem.

Plaintiff sustained injuries by reason of a collision between a motorcycle driven by Mm and an automobile operated by defendant. The ease was tried by the court sitting without a jury and plaintiff had judgment. Defendant appeals.

Plaintiff was a traffic officer and deputy sheriff; was on . duty and chasing a hit-and-run driver whose car had struck another automobile and injured the occupants. The motorcycle was equipped with a siren and both headlights and tail-light, which were all burning. The siren was being sounded at the time of the accident and had been for several minutes previous thereto. Plaintiff was traveling north and defendant south on Highland Avenue in National City and when defendant arrived at Sixth Street he attempted to make a left-hand turn when the collision occurred. Plaintiff was traveling at a speed of fifty miles per hour or more. The crossing where the accident happened was in a twenty-mile zone, as well as a fifteen-mile intersection. The accident happened on a Sunday afternoon on the main road between Tijuana and San Diego, where traffic was exceptionally heavy.

The only question raised on appeal is whether the plaintiff was guilty of contributory negligence as a matter of law. The sections of the California Vehicle Act (Acts 1923, p. 517), in force at the time of the accident and which are the law of the ease are:

“Sec. 120. When Speed Limit not applicable. The provisions of this act prescribing the speed for vehicles shall not apply to vehicles of any city, city and county, or county or of the state of California when such vehicles are being operated in the chase or apprehension of violators of the law, or of persons charged with or suspected of any such violation, nor to fire department vehicles when traveling in response to a fire alarm nor to ambulances or the vehicles of licensed physicians when actually traveling in response to emergency calls. . . .

“Sec. 132. Police and Fire Vehicles have right of way. Police and fire department vehicles shall have the right of

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way over all other vehicles but must be operated with due regard for the safety of all persons using the public highway. This provision shall not protect the driver- of any such vehicle or his employer or principal from the consequence of the arbitrary exercise of such right of way.