2 Cal.3d 465, 7851, Pike v. Frank G. Hough Co.

Docket Nº7851
Citation2 Cal.3d 465, 85 Cal.Rptr. 629, 467 P.2d 229
Opinion Judge[11] Mosk
Party NamePike v. Frank G. Hough Co.
Attorney[7] Goldstein, Barceloux & Goldstein, P. M. Barceloux, Burton J. Goldstein, Albert E. Levy and Ralph Golub for Plaintiffs and Appellants. [8] Edward I. Pollock, Robert E. Cartwright, Theodore A. Horn, Marvin E. Lewis, William H. Lally, Ned Good and Leonard Sacks as Amici Curiae on behalf of Plain...
Case DateApril 17, 1970
CourtSupreme Court of California

Page 465

2 Cal.3d 465

85 Cal.Rptr. 629, 467 P.2d 229

Robert W. PIKE, a Minor, etc., et al., Plaintiffs and Appellants,


FRANK G. HOUGH COMPANY et al., Defendant and Respondents.

Sac. 7851.

Supreme Court of California

April 17, 1970.

Superior Court of Butte County, Vernon Stoll, Judge. [*]

Page 466

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P. M. Barceloux, Burton J. Goldstein, Albert E. Levy, Ralph Golub and Goldstein, Barceloux & Goldstein, San Francisco, for plaintiffs and appellants.

Edward I. Pollock, Los Angeles, Robert E. Cartwright, San Francisco, Theodore A. Horn, Los Angeles, Marvin E. Lewis, San Francisco, William H. Lally, Sacramento, Ned Good and Leonard Sacks, Los Angeles, as amici curiae on behalf of plaintiffs and appellants.

Rich, Fuidge, Dawson, Marsh & Morris and Dennis C. Noonan, Marysville, for defendants and respondents.

MOSK, Acting Chief Justice.

On July 15, 1964, at 3:10 a.m., Robert Pike was killed when he was struck by a Hough Model D-500 Paydozer, which was being used in the construction of the Oroville Dam. Pike was working the night shift as a 'spotter' for Oro-Dam Constructors, and his assignment was to direct dump trucks in the area in which dumped fill was to be spread and tamped down by the paydozer. On the morning of the accident, the men were filling in a corner of the dam surface, and in doing so it was necessary for the paydozer to go forward and then backward within a short distance to accomplish the spreading and tamping of the earth. Decedent was some 30 to 40 feet behind the paydozer, standing on an angle with his back to the paydozer when it backed up and struck him.

Decedent's widow and minor children brought this action for wrongful death against the manufacturer of the paydozer. The case was tried to a

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jury. Plaintiffs sought to establish the liability of the defendant on either a negligence or a strict liability theory, based on the design of the paydozer. At the conclusion of plaintiffs' case, defendant moved for a nonsuit which was granted. 1 Plaintiffs appeal.

As we have consistently pointed out a 'nonsuit in a jury case or a directed verdict may be granted only when disregarding conflicting evidence, giving to the plaintiffs' evidence all the value to which it is legally entitled, and indulging every legitimate inference which may be drawn from the evidence in plaintiffs' favor, it can be said that there is no evidence to support a jury verdict in their favor.' (Elmore v. American Motors Corp. (1969) 70 Cal.2d 578, 583, 75 Cal.Rptr. 652, 655, 87.) Thus, the issue before us in this appeal is whether the evidence presented by plaintiffs, viewed favorably to their cause, was sufficient to support a jury verdict finding that defendant was liable to plaintiffs for negligently designing the paydozer or that defendant was strictly liable to plaintiffs for defects in the paydozer causing decedent's death.

The record establishes the following evidence most strongly in favor of plaintiffs: The area in which the accident occurred was well illuminated with mercury lights and visibility was good despite the hour of the morning. When decedent was struck, the paydozer was in the process of reversing to position itself to then move forward to spread and tamp down fill; behind the paydozer decedent was directing dump trucks in depositing fill which was to be spread and tamped by the paydozer at a later time. Prior to backing up, the operator of the paydozer, who had not observed Pike for about five minutes, looked to the rear to ascertain if it was clear, but he did not see Pike, who was standing 30 to 40 feet behind the vehicle and wearing a luminous jacket. The operator testified that there was a substantial blind spot to the rear of the paydozer because of its design. He also testified that the lighting was clear enough so that workers on the other side of the dam were visible.

The Hough paydozer was a large, noisy earth-moving machine. It was designed to move backward as well as forward and, as here, to perform in confined areas. It was equipped with two white headlights, and, on the rear, two red tallights and two white lights. At the time of the accident, only the red taillights were illuminated; the headlights were turned off because the dump truck operators complained of the glare, and the rear white lights were off because they blinded other equipment operators

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working in the vicinity. The paydozer had no rearview mirrors and no audible or visible backup warning signal.

Robert Snyder, a registered mechanical engineer, appeared as an expert for plaintiffs. According to his testimony, the design of the paydozer with its large engine box to the rear created a blind area behind the paydozer of such dimension that, if the operator looked behind him while sitting in the cab, he could not see a man six feet tall standing anywhere between one and 48 feet to the rear of the machine. The blind area extended laterally at least 10 feet to each side of the midline of the paydozer. Snyder testified that the blind area could be reduced from a rectangle 48 feet by 20 feet to a cone-shaped area with a maximum length behind the machine of 12 feet by installation of two rearview mirrors located four feet out from each side of the cab. The four-foot distance, he pointed out, would not project the mirrors beyond the vertical line of the huge tires on the tractor. The mirrors he described were similar to those he had seen on ditchdigging equipment. He also recommended a blinking amber light or a tooting horn to alert persons within the remaining blind area.

In nonsuiting plaintiffs on their negligence cause of action, the trial court held as a matter of law that a vehicle intended to move backward is not negligently designed although the operator cannot see a man 30 to 40 feet behind him in the direct path of the vehicle and although simple mirrors and lights could alleviate the danger. The court was in error; this was essentially a question of fact for determination by the jury.

The duty of a manufacturer with respect to the design of products placed on the market is defined in the Restatement Second of Torts, section 398: 'A manufacturer of a chattel made under a plan or design which makes it dangerous for the uses for which it is manufactured is subject to liability to others whom he should expect to use the chattel or to be endangered by its probable use for physical harm caused by his failure to exercise reasonable care in the adoption of a safe plan or design.' Thus, the manufacturer must use reasonable care "to so design his product as to make it not accident-proof, but safe for the use for which it was (sic) intended." (Varas v. Barco Mfg. Co. (1962) 205 Cal.App.2d 246, 258, 22 Cal.Rptr. 737, 744, quoting from 76 A.L.R.2d 91, 94.) What is 'reasonable care,' of course, varies with the facts of each case, but it involves a balancing of the likelihood of harm to be expected from a machine with a given design and the gravity of harm if it happens against the burden of the precaution which would be effective to avoid the harm. (2 Harper and James, The Law of Torts (1956) § 28.4, p. 1542.)

Applying the foregoing standards to the case at bar, it would

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seem a jury could conclude that a manufacturer of a vehicle intended to go backward should have been aware that the machine's structural design made it impossible for the operator to see a man standing anywhere between one and 48 feet behind the machine and in its direct paty. And, having so found, a jury could decide that a manufacturer who failed to correct this deficiency with two rearview mirrors, or any comparable device, violated his duty to produce a product reasonably safe for its intended use. Although that result may not have been compelled, the evidence was sufficient to justify such findings, and plaintiffs need do no more than produce such evidence to avoid a nonsuit. 2

Although no cases in California or other jurisdictions have considered facts identical to those in the instant action, the weight of authority supports a finding of negligent design. In Zahora v. Harnischfeger Corporation (7th Cir. 1968) 404 F.2d 172, the circuit court reversed a summary judgment for defendants under somewhat comparable circumstances. While plaintiff was looking into the malfunctioning in the bridge of a crane, the operator moved the crane and crushed him against the cab. The operator testified that he could not see plaintiff and that it was probably because the bottom half of the door to the cab was metal, so that his vision of the bridge was restricted. On the basis of this evidence, the court stated: 'Viewing the implications and inferences of the operator's deposition in a light most favorable to the plaintiff, we find his comments suggest it is at least disputable whether or not the cab design permitted the operator that amount of vision necessary to the safe operation of the crane.' (Id. at p. 177.) In the case at bar, the trial court granted a nonsuit, rather than a summary judgment, but these plaintiffs' evidence was stronger than that in Zahora. Here no reliance on mere 'implications and inferences' is required, for the expert witness testified that there was a definite massive blind area behind the paydozer, but that installation of two mirrors would have made decedent visible to the operator long before the point of impact.

Our recent case of Menchaca v. Helms Bakeries Inc. (1968) 68 Cal.2d 535, 67 Cal.Rptr. 775 lends support to plaintiffs' position that they were wrongfully nonsuited. We held there that an issue of jury dimensions was raised as to whether a bakery truck was negligently equipped in lacking mirrors to correct a blind spot. 'Considerable evidence indicated that the truck had...

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