The opinion
SCHAUER, J., Concurring and Dissenting.
In my view the opinion prepared for the District Court of Appeal by Justice Mussell and concurred in by Presiding Justice Griffin and Justice Shepard, reported in (Cal.App.) 346 P.2d 479 , correctly resolves all of the issues presented on this appeal. This leads to the conclusion that the judgment of the trial court should be reversed as to both Mr. West and Mrs. West.
The opinion of the Chief Justice reverses solely as to Mr. West, and as to him, only to retry the issue of damages because the trial court had erroneously instructed the jury that it could award damages to him for loss of his wife’s consortium. I concur with both the opinion and the conclusion of the Chief Justice as to this phase of the ease.
As to other elements of the case, however, I am persuaded that serious error in the instructions precluded the defendant from having a fair trial. As stated by Justice Mussell in the opinion prepared for the District Court of Appeal, “Appellant’s first contention on appeal is that the trial court erred in its instructions to the jury on the emergency vehicle privilege. The record shows that 81 instructions were read to the jury (Rep. Tr., pp. 700-759) and that many of these instructions dealt with the rules applicable to liability for negligent acts without consideration of the emergency vehicle privilege. For example, in instruction No. 32 the court said; ‘If by a preponderance of evidence it has been proved that any negligent conduct on the part of the defendant was a proximate cause of an injury in question, such proof is sufficient to establish liability. ’ In instruction No. 39, in stating the issues to be determined by the jury, no mention was made by the court of the issue involving the emergency vehicle privilege. In instruction No. 52 the jury was instructed that:
“ ‘The speed at which a vehicle travels upon a highway, considered as an isolated fact and simply in terms of so many *480 miles an hour, is not proof either of negligence or of the exercise of ordinary care.
“ ‘Whether that rate of speed is a negligent one is a question of fact, the answer to which depends on all the surrounding circumstances.
‘ ‘ ‘ The basic speed law of this State, as provided by Section 510 of our Vehicle Code, is as follows:
“ ‘ “No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent, having due regard for the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property.”
“ ‘Prima facie speed limit that was in effect at the time and place of the accident involved in this case was fifty-five miles an hour. ’
“Instruction No. 56 was as follows:
“ ‘ Section 454 of the Vehicle Code provides:
“ ‘The driver of a motor vehicle could be guilty of wilful misconduct in doing no wrong except driving at a speed which in the attendant circumstances would be excessive and reckless, provided either that in so driving he had knowledge that serious injury to another probably would result, or that he drove at such speed with a wanton and reckless disregard of the possible results.
“ ‘ “and speed alone may constitute an arbitrary exercise of the privileges extended by Section 454 of the Vehicle Code.” ’
“It is apparent that the trial court did not correctly state the provisions of section 454 of the Vehicle Code in this connection. This section provides as follows:
“ ‘The driver of an authorized emergency vehicle shall be exempt from those provisions of this code herein set forth under the following conditions:
“ ‘ (a) Said exemptions shall apply whenever any said vehicle is being driven in response to an emergency call or when used in the immediate pursuit of an actual or suspected violator of the law, or when responding to but not upon returning from a fire alarm.
“ ‘(b) Said exemptions shall apply only when the driver of said vehicle sounds a siren as may be reasonably necessary and the vehicle displays a lighted red lamp visible from the front as a warning to others. Under the circumstances herein-above stated, any said driver shall not be required to observe those regulations contained in Chapter 3. or in Chapters .6 *481 to and including Chapter 13 of Division 9 or Section 604 of this code, but said exemptions shall not relieve the driver of any said vehicle from the duty to drive with due regard for the safety of all persons using the highway, nor shall the provisions of this section protect any such driver from the consequences of an arbitrary exercise of the privileges declared in this section.'
“In instruction No. 57 the jury was told that ‘if a party violated the statute just read to you, a presumption arises that he was negligent. ’ It does not appear that the statute [§454] was in fact [just] read to the jury as stated, and it further appears that the jury was informed that ‘speed alone may constitute an arbitrary exercise of the privileges extended by section 454 of the Vehicle Code. ’ It is apparent that the trial court informed the jury that speed alone, despite the fact of the exemption granted by the statute, may constitute negligence. This, we conclude, was reversible error. . . . While it is true that in another instruction the trial court properly instructed the jury with reference to the meaning of the phrase ‘arbitrary exercise of the privilege’ and as to the effect of the exemption statute, it cannot be determined whether the verdict was reached upon the basis of the criticized instructions or upon the later instructions given. As is said in Francis v. City <& County of San Francisco, 44 Cal.2d 335, 341 [ 282 P.2d 496 ] :
“ ‘The giving of an erroneous instruction is not cured by the giving of other correct instructions where the effect is simply to produce a clear conflict in the instructions and it is not possible to know which instruction was followed by the jury in arriving at a verdict.’ ”
Inspection of the record shows, further, that of the 81 instructions read to the jury, the subject of emergency vehicles was not mentioned until near the end, in instructions 64 through 67. All subsequent instructions dealt with damages and with conduct of the jury’s deliberations. For this additional reason, it appears to me that the court prejudicially overemphasized to the jury the issues of negligence as compared to those having to do with emergency vehicles.
For the reasons indicated I would reverse the judgment in its entirety and remand the cause for a new trial.
McComb, J., concurred.