Rogers v. City of Los Angeles

SCOTT, J., pro tem. Plaintiff Billie Eileen Rogers and the other plaintiffs, her parents, recovered judgment against defendants for injuries received by the first-named plaintiff, then twenty years of age, when the coupe driven by her was struck by an ambulance owned by defendant city and driven by defendant Garrett in the course of his employment. Defendants appeal.

The accident occurred about noon on a clear day. The driver of the coupe was going east on Jefferson Boulevard in the City of Los Angeles, and as she approached the intersection of Crenshaw Boulevard the signal was open for east and west bound traffic. She was traveling in the center lane of the south half of the street. The ambulance was going south on Crenshaw, responding to an emergency call. As it approached Jefferson it swerved toward the east side of the street it was traversing to avoid the southbound cars thereon, proceeded into Jefferson and the two cars collided in the intersection. Because of injuries received the driver of the coupe testified she was unable to recall the incidents surrounding the accident.

Appellants urge three points on appeal: (1) Insufficiency of the evidence to establish their liability, (2) proof of contributory negligence as a matter of law, and (3) noncompliance with charter provisions with reference to presenting claim before suit.

[296]In support of their contention relating to the insufficiency of the case against them, appellants place their reliance upon section 132 (b) of the California Vehicle Act (Deering’s Gen. Laws, 1931, Act 512, vol. 2, p. 2515, Stats. 1929, p. 542), which reads: “The driver of a vehicle upon a public highway shall yield the right of way to any authorized emergency vehicle when the latter are operated upon official business and the drivers thereof sound audible signal by siren. This provision shall not relieve the driver of any authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway, nor shall it protect the driver of any such vehicle from the consequence of an arbitrary exercise of such right of way.” The jury, at the request of defendants, was instructed upon the law contained in this section, including definition of the word “arbitrary”. It is admitted that the ambulance was an authorized emergency vehicle and that it was being operated on official business. (California Vehicle Act, secs. 8% and 120, Deering’s Gen. Laws, 1931, vol. 2, pp. 2455, 2511.) The extent to which the siren was being audibly sounded was the subject of testimony which was somewhat in conflict. Nearly all witnesses heard the siren, many of them declaring that it sounded at 29th Street, three or four blocks north of Jefferson, and then did not sound again until it entered the intersection not far from the point of impact. One westbound motorist on Jefferson declared he did not hear it at all until just as the ambulance was entering the intersection. “The weight to be given negative testimony, where it is claimed that signals were not given, is a question for the jury; and such evidence is sufficient to sustain a verdict even though it conflict with other evidence that a warning was actually given. (Thompson v. Los Angeles Ry. Co., 165 Cal. 748 [134 Pac. 709] ; Keena v. United Railroads, 197 Cal. 148 [239 Pac. 1061].)” (Ferran v. Southern Pacific Co., (Cal. App.) 35 Pac. (2d) 1076.) As above indicated, the traffic signal was closed to north and. south bound traffic when defendants’ vehicle