Buck v. Ice Delivery Co.

KELLY, J. On February 29, 1931, plaintiff’s ambulance was on an emergency call and being driven south on 25th street in Portland, Oregon. Defendant’s ice truck was being operated east on Love joy street. These streets intersect at right angles. Lovejoy street, at the place where the accident occurred, had been *133 designated by municipal ordinance as a stop street for traffic proceeding north and south on 25th street, and signs had been erected to that effect. Plaintiff’s ambulance was not brought to a complete stop before entering the intersection of Love joy and 25th streets and continued on through the intersection 'resulting in a collision with the defendant’s truck and damage to the ambulance. Section 55-704, Oregon Code 1930, which was in effect at the time of the collision in suit, provides: “Main traveled highways — Designation—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 entrance 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, * * Defendant requested an instruction to the effect that a violation by plaintiff of the foregoing statute and of the terms of the municipal ordinance declaring Love joy street to be a stop street, by failing to bring his ambulance to a stop at said intersection, constituted negligence on plaintiff’s part. This requested instruction was refused. Defendant duly excepted and thus the single question is presented of whether, at the time of the collision in suit, the operator of plaintiff’s ambulance was relieved from the duty to stop at a stop street as prescribed by said ordinance and the statute above quoted. Plaintiff argues that the law of emergency amends the law of state and municipality, and by virtue of *134 such amendment his ambulance was not required to stop at a stop street when taking an injured person to a hospital. Whatever may be said on that question when, as now, the law requires the operators of all other vehicles, upon hearing the sound of the siren of an authorized emergency vehicle, immediately to park their cars free from intersections until such emergency vehicle shall have passed or a police officer otherwise directs, (Sec. 37, Chap. 360, Sess. Laws, 1931, p. 645; Leete v. Griswold Post No. 79, Am. Leg., 114 Conn. 400 (158 Atl. 919)), we must bear in mind that when the collision in suit occurred there was no such, requirement. The case at bar is a most emphatic and impressive illustration of the wisdom of the mandate that such stops should be made. Here we have a case where the required stop was not made and not only was much delay thereby caused to the parties in the ambulance but extensive property damage ensued and human life was greatly imperiled. Just why the great extremity of a patient should be urged as a reason for still further jeopardizing such patient’s life by crossing a stop street without first stopping is not clear to the writer. The very obvious moral of the case at bar is that certainty of reaching the place of succor, at least partially assured by observing the stop signs, should not have been sacrificed by unwise haste resulting in frustration. If, as in the case at bar, failure to observe a stop sign would prevent an emergency vehicle from reaching the place where and when the relief it seeks may be effectively available, certainly the court should not adopt a construction of the law which invites and approves such a disappointing result. That is not all. *135 Coupled with the disappointment and dismay of the person or persons under the control of the operator of an ambulance in such circumstances, there is also the menace to other travelers, whose property might be destroyed and whose lives might be forfeited, by disregard of the mandate mentioned on the part of the ambulance driver. Plaintiff also urges that the provision of the statute which declares that the statutory speed limitations shall not apply to public or private ambulances when traveling in emergencies (Section 55-1007 (d), Oregon Code 1930), together with the provisions of the statute granting the right of way to ambulances (Section 55-605 and Section 55-702, Oregon Code 1930), should be construed as exempting plaintiff’s ambulance from the terms of the ordinance and statute requiring motor vehicles to stop before entering or crossing a main traveled or through highway which has been duly designated as such and at the entrances of which signs have been erected notifying drivers of vehicles to come to a full stop. We are unable to concur in this view: Lamar & Smith v. Stroud, (Tex. Civ. App.) 5 S. W. (2d) 824. In West v. Jaloff, 113 Or. 184 (232 P. 642, 36 A. L. R. 1391), this court, speaking through the late Mr. Chief Justice McBride, said: “Granting the right of way to an ambulance is one thing and granting the right to exceed the statutory speed is another.” We think that granting an exemption from the observance of a statutory mandate to stop at streets duly and legally designated as stop streets is still another thing. The record discloses that plaintiff violated the ordinance and statute in question and therefore was *136 guilty of negligence. The trial court should have so instructed the jury. To the writer it is inconsistent with the invariable rule announced by the adjudications thereon to invoke here a statutory provision abolishing the speed limit as to fire apparatus and giving such appliances the right of way on the streets. That rule has been established by judicial construction: City of Kansas City v. McDonald, 60 Kan. 481 (57 P. 123, 45 L. R. A. 429); State v. Sheppard, 64 Minn. 287 (67 N. W. 62, 36 L. R. A. 305); Farley v. New York, 152 N. Y. 222 (46 N. E. 506, 57 Am. St. Rep. 511); Toledo Ry. & Light Co. v. Ward, 25 Ohio Cir. Ct. Rep. 399; Spellman v. Metropolitan St. Ry. Co., 87 Kan. 415 (124 P. 363, Ann. Cas. 1913E, 230); Dole v. New Orleans R. & Light Co., 121 La. 945 (46 So. 929, 19 L. R. A. (N. S.) 623); Magee v. West End St. Ry. Co., 151 Mass. 240 (23 N. E. 1102); Warren v. Mendenhall, 77 Minn. 145 (79 N. W. 661). In Hanlon v. Milwaukee Electric Ry. & Light Co., 118 Wis. 210 (95 N. W. 100), the court, in holding that no indubitable inference of negligence arose from the fact that a fireman gave head to his horses and attempted to make a crossing in front of an approaching electric car, said: “Among those things which distinguish the conduct of the driver of fire apparatus from other is, primarily, the duty and necessity of great speed. The loss of moments may mean destruction of lives or property. The public purpose which such men and appliances serve would be defeated by the hesitation and caution which does and should characterize the ordinary traveler. To serve this public purpose, the driver must and does seize every opportunity to make expedition. He takes chances, in deference to the imperative necessity for speed, which would be wholly unjustifiable otherwise. These things firemen do. These things they must do. The conclusion seems irresistible, either that *137 they are consistent with ordinary care under those circumstances or that the ordinarily prudent man cannot hold a position in the fire department.” To the writer it is equally inappropriate to liken the driver of a private ambulance to a peace officer in pursuit of a felon, whom such officer is duly authorized to arrest. The points of variance are so numerous and those of resemblance so vague' that reference thereto may be permitted. “Every person must aid an officer in the execution of a warrant, if the officer require his aid and be present and acting in its execution.” Section 13-2103, Oregon Code 1930. This well-known provision of the statute, doubtless, had its origin in the statute of hue and cry (13 Edw. I, Chaps. 1 and 2), by which the inhabitants of a hundred were liable for the loss of goods taken unless they produced the robber. Hue and cry is the old common-law process of pursuing with horn and with voice all felons, and such as have dangerously wounded others. Hue and cry may be raised by constable, private persons or both. 5 C. J., Arrest, 421, Sec. 54. “If, after notice of intention to arrest the defendant, he either flee or forcibly resist, the officer may use all necessary and proper means to effect the arrest.” Section 13-2108, Oregon Code 1930. “The killing of a human being is justifiable when committed by public officers or those acting in their aid and assistance and by their command, * * * (4) When necessarily committed in arresting a person fleeing from justice who has committed a felony.” Section 14-216, Oregon Code 1930. “The killing of a human being is also justifiable when committed * * * 3. In the attempt, by lawful ways and means, to arrest a person who has committed a felony.” Section 14-217, Ibid. *138 It certainly cannot be claimed that the driver of an ambulance has the right to kill a human being while acting in the line of his very commendable duty to convey the injured and afflicted to a place of succor. Neither is it his right to use force in the line of his duty, and assuredly only the instincts of sympathy and kindliness afford him any expectation of being obeyed when he makes an appeal to bystanders for help. Firemen and police officers are vested with official discretion which may not be deemed to be abused by violating statutes and ordinances regulating traffic upon the public highways. This is not because of any statutory enactment exempting peace officers nnd firemen from such rules of the road, but upon the ground of sound public policy. In a word, the statutes, which plaintiff invokes, were unnecessary as to firemen and peace officers, in the discharge of their duties as such. As to them no different status was created by such statutes than the status which was theirs before the enactment of such law. The effect of these statutes is simply to abolish the speed limit as to ambulances when traveling in emergencies and to give ambulances the right of way when being'operated on official business and sounding an audible signal. It does not, because by the very nature of things it cannot, render a private ambulance similar in purpose or service either to a pursuing peace officer’s motor vehicle or to the apparatus of a fire department under the charge of a fireman on the way to a fire. The sole question involved here is whether, in the absence of a statute exempting ambulances from the duty of observing the ordinance and statute requiring *139 motor vehicles to stop at through, streets, private ambulances are nevertheless absolved from such duty because they are not bound to observe speed regulations and ambulances operated on official business and sounding an audible signal are accorded the right of way. The case of Leete v. Griswold Post No. 79 American Legion, supra, is based upon a provision of the Connecticut statute requiring all other vehicles to stop upon hearing the siren of an emergency vehicle. As stated, we have such a statute now, but did not when the collision in suit occurred. In that case, among other things, the court said: “Section 1595 includes a requirement for a signal so distinctive and audible as to apprise all other traffic in the vicinity of the impending passage of a vehicle of a nature preferred because of imperative need of rapid and unimpeded progress, and requires conduct on the part of other traffic consistent with that end. ’ ’ The statute above mentioned, as section 1595, reads thus: “Section 1595. (a) The driver or operator of an ambulance, while answering a call or taking a patient to a hospital, and the driver or operator of any vehicle used by a fire company or by any officer of a fire company or fire department while on the way to a fire, provided such ambulance or vehicle used by a fire company or an officer thereof shall be equipped with a horn, gong, bell or siren sounding a loud warning, distinctive from warnings sounded by horns, gongs, bells or sirens commonly in use on motor vehicles, shall have the right of way over all other traffic upon any public or private way. (b) The driver or operator of any vehicle other than those described in subsection (a) of this section, shall upon the approach of any vehicle of the kind described therein, immediately drive or operate such vehicle as near as practicable to *140 the right hand side of the traveled portion of the highway in the direction in which such driver or operator is traveling and stop such vehicle until such ambulance or vehicle used by a fire company or an officer thereof shall have passed.” In determining whether an ordinance, giving ambulances the right of way over all other vehicles, had the effect of rendering nugatory another ordinance fixing a maximum rate of speed, the supreme court of Michigan, speaking through Mr. Chief Justice Champlin, said; “The ordinance giving the right of way to ambulances * * * has no reference to the speed at which they may be transported.” People v. Little, 86 Mich. 125 (48 N. W. 693). We quote from the opinion in that case: “Respondent in his affidavit for certiorari claims that he had a right to drive 12 miles an hour, and that he was only driving at that rate. That it is reckless to drive at such rate of speed through the streets of a city where many people are passing in carriages and crossing the streets upon foot, is self-evident. It jeopardizes human life. Men, women, and children may be run down, and injured or killed by such vehicles driven at such high rate of speed. It would be bad policy for a city to authorize a rate of speed which would be so liable to cause accidents, for the sake of affording more prompt relief to some one injured by an accident. The public interests do not demand that, in order to afford prompt relief to one person requiring the use of an ambulance other persons may be run down and injured by the fast and reckless rate of speed of the ambulance in going to the assistance of the person injured.” People v. Little, (supra). While the question, here involved, which is whether the statute requiring vehicles to stop before crossing through streets is impliedly repealed as to ambulances by the statute giving ambulances the right of way, and abolishing the speed limit as to them, was not *141 before the Michigan court in the case last cited; it is there clearly indicated as in West v. Jaloff, supra, that only such exemptions from the rules of the road as are expressly given to private ambulances, should be recognized and that, unlike fire apparatus on the way to a fire, or a peace officer’s vehicle while being used to pursue a felon, private ambulances do not serve the public interest to such an extent that they may be operated in violation of ordinance or statute at the discretion of their drivers. If the legislature had enacted a statute making ambulances only exempt from special regulations and giving them, while on official business, the right of way, without mentioning fire apparatus or police vehicles, it could have been argued that the legislature impliedly restricted such exemptions to ambulances, and removed them as to the other two classes of vehicles. That is a sufficient reason for mentioning those other vehicles, in the statute actually passed; and, to the mind of the writer, a far more cogent one than attributing an intention to place the three classes of vehicles on a parity and to decree that notwithstanding the constabulary and the fire fighters perform a duty and a service wholly dissimilar to drivers of ambulances, nevertheless because ambulances, fire apparatus and police vehicles are all mentioned in one statute, rights not expressly given by statute are to be accorded by implication. The judgment of the circuit court is reversed and the cause remanded for such further proceedings as may not be inconsistent herewith. Rand, C. J., Bean, Rossman and Campbell, JJ., concur. Bailey, J., specially concurring. Belt, J., dissenting in opinion.