Buck v. Ice Delivery Co. , 146 Or. 132 ( 1933 )

This action to recover damages for personal injuries arose out of a collision between an ambulance and an ice truck at the intersection of Lovejoy and 25th streets in the city of Portland. With the siren continually sounding, the ambulance, on an emergency case, was proceeding south on 25th street which intersects Lovejoy at right angles. The ice truck was being driven east on Lovejoy street which had been designated by city ordinance as a through street. It is conceded that the ambulance did not come to a complete stop before entering the intersection, although the stop sign was plainly visible. The case was submitted to a jury and a verdict was returned in favor of the plaintiff. From the judgment entered thereon, the defendant company, operator of the ice truck, appeals.

The sole question presented is whether, under the Oregon motor vehicle act in effect at the time of the accident, it was negligence per se for the driver of the ambulance to fail to bring such emergency vehicle to a stop before proceeding into the street intersection. The appellant company contends that such conduct on the part of the driver of the ambulance amounted to contributory negligence as a matter of law and that, in compliance with its request, the court should have so instructed the jury.

Appellant relies on section 55-704, Oregon Code 1930, which provides:

"The state highway commission, with reference to state highways, and local authorities, with reference to highways under their jurisdictions, are hereby authorized to designate main-traveled or through highways by erecting at the entrances thereto from intersecting highways signs notifying drivers of vehicles to come to a full stop before entering or crossing such designated highway, and whenever any such signs have been so erected, it shall be unlawful for the driver of any vehicle to fail to stop in obedience thereto * * *."

It is clear that, if we look solely to the plain and unambiguous language of the above section of the statute, the contention of appellant must be upheld. However, plaintiff asserts that, in order to determine the legislative intent, such section must be considered in the light of other sections of the act regulating the operation of emergency vehicles. Turning to section 55-1007 (d), Oregon Code 1930, we find that speed limitations applicable to motor vehicles generally do not apply "to vehicles when operated with due regard for safety under the direction of the police, sheriff or traffic officer 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 or fire patrol vehicles when traveling in response to a fire alarm, nor to public or private ambulances when traveling inemergencies. * * *." This section provides further, however, that the exemption from speed limitations shall not relieve the driver of emergency vehicles "from the consequences of a reckless disregard of the safety of others". Attention is also directed by respondent to that section of the Oregon motor vehicle act (§ 55-605, Oregon Code 1930) granting to "Police, traffic and fire department vehicles and ambulances" the right of way when "operated upon official business and the drivers thereof sound audible signal by bell, siren or exhaust whistle". The legislature, however, was careful to provide in such section granting the right of way to emergency vehicles that they must be driven with due regard for the rights of others using the highway.

It is apparent from the above legislative enactments that the progress of emergency vehicles, when engaged in the business for which they are intended, should not be impeded by the rules and regulations applicable to general vehicular traffic. Since fire engines, police vehicles and ambulances are included in the same sections of the statute granting to them the right of way and exempting them from speed regulations, it logically follows that the same rules should apply to each. If this court should hold that an ambulance must come to a full stop before entering a through street intersection, likewise a fire engine stationed in the southern part of the city, in responding to a general alarm to a fire in the northern part of the city, would be obliged to come to a complete stop at every through street.

It would also create an anomalous situation, to say the least, to hold that a police officer in hot pursuit of a bank robber — who knows no law — is obliged to bring his automobile to a stop. We apprehend that the legislature intended no such dire consequences. Indeed, counsel for the defendant company concedes "that there are times when the requirement compelling police cars and fire apparatus to come to a full stop upon entering a through street is an absurd requirement" but argues that the fault lies with the legislature and that it is not within the province of the court to refuse to give effect to the plain language of the statute requiring all vehicles to stop.

If the general traffic rules are applicable in the instant case, the ice truck would have the right of way upon approaching the intersection at approximately the same time as the ambulance. However, we are confronted with the specific statutory provision conferring the right of way upon ambulances in emergency cases. Hence, if the ambulance is required by virtue of section 55-704, Oregon Code 1930, to stop at such street intersections, the effect of such requirement would be to abrogate section 55-605, Oregon Code 1930, granting the right of way to emergency vehicles. Furthermore, if section 55-704, Oregon Code 1930, be held applicable to emergency vehicles, section 55-1007 (d), Oregon Code 1930, exempting such vehicles from speed limitations, will be rendered nugatory. Under such circumstances, it is the duty of the court to reconcile these various statutory provisions to the end that the intent of the legislature that the progress of emergency vehicles shall not be impeded be given effect. We conclude that, when the motor vehicle act is considered in its entirety, it seems clear that it was not the legislative intent to make section 55-704, Oregon Code 1930, applicable to emergency vehicles, even though the literal wording of such section would embrace them.

In the recent case of Leete v. Griswold Post No. 79, AmericanLegion et al., 114 Conn. 400 (158 A. 919), it was held that the statute governing movement of traffic at intersections where traffic signals were installed did not repeal a statute granting right of way to ambulances and fire apparatus. In this case the ambulance entered the intersection against the traffic light and collided with a truck being driven on a through street. The court, while not absolving the driver of an ambulance from the duty of exercising reasonable care under the circumstances, concluded that, while acting on emergency cases, he is exempt from compliance with traffic light signals. It was said:

"One has but to contemplate the necessary result of compliance by fire apparatus and ambulances with all traffic light signals and traffic regulations to appreciate the need and purpose of such an exception in their favor as this statute provides. We hold, therefore, that this exception obtains, the facts bring the ambulance within its protection, and the fact that the traffic light was against it did not, of itself, render negligent the act of its driver in traversing the intersection."

For closely analogous cases, see Gaines v. Taylor (Ind.),185 N.E. 297, and Ferraro v. Earle, 105 Vt. 243 (164 A. 886). In the latter case the court held that the mere fact that the emergency vehicle entered the intersection against the stop light did not of itself constitute negligence. True, this case concerns the operation of a fire truck, but we see no difference in principle since, under the motor vehicle act of this state, the three classes of emergency vehicles are governed by the same traffic rules and regulations. Lamar Smith v. Stroud (Tex.),5 S.W.2d 824, is contrary to the conclusion we have reached and supports the theory of appellant. It is believed, however, that the latter case is not a sound declaration of the law.

It is not to be understood that, because emergency vehicles are exempted from speed limitations and are given the right of way, the drivers thereof are privileged to throw discretion to the winds. The fundamental rule that care shall be commensurate with the danger involved still prevails. Notwithstanding such emergency vehicles are not required to stop before entering a through street, it does not follow that they may not be guilty of negligence in driving through street intersections. This is ordinarily a question, however, under all the facts and circumstances, for the jury to determine, and not for the court to declare as a matter of law.

Finding no error in the refusal of the trial court to instruct the jury that the failure of the driver of the ambulance to stop in itself constituted negligence, it follows that the judgment should be affirmed.