Anderson v. L. C. Smith Const. Co.

• Decision Date: 26 September 1969
• Court: California Court of Appeals Court of Appeals
• Parties: Sherry ANDERSON and Randy Anderson, minors, by and through their guardian ad litem, Norma Anderson, and Norma Anderson, Plaintiffs and Appellants, v. L. C. SMITH CONSTRUCTION COMPANY, a corporation, Gary A. Sisk and Raleigh Allston, dba G & R Trucking Company, a corporation, and W.S.P. Trucking Company, a copartnership, Defendants and Respondents. Civ. 25002.

Page 73

81 Cal.Rptr. 73

276 Cal.App.2d 436

Sherry ANDERSON and Randy Anderson, minors, by and through their guardian ad litem, Norma Anderson, and Norma Anderson, Plaintiffs and Appellants, v. L. C. SMITH CONSTRUCTION COMPANY, a corporation, Gary A. Sisk and Raleigh Allston, dba G & R Trucking Company, a corporation, and W.S.P. Trucking Company, a copartnership, Defendants and Respondents.

Civ. 25002.

Court of Appeal, First District, Division 2, California.

Sept. 26, 1969.

Hearing Denied Nov. 19, 1969.

Hoberg, Finger, Brown & Abramson, and James W. Power, San Francisco, for appellants.

Low & Ball, San Francisco, for respondents L. C. Smith Construction Co. and W.S.P. Trucking Co.

Gudmundson, Siggins, Stone & Goff, and W. W. Gudmundson, San Francisco, for respondents Gary Sisk and Raleigh Allston, individually and doing business as G & R Trucking Co.

AGEE, Associate Justice.

On January 28, 1964, about 1:00 p.m., Donald Anderson, an engineer employed by the State of California on a freeway construction project, was killed at the jobsite when a truck loaded with asphalt backed up and ran over him.

Anderson's widow and two minor children brought this wrongful death action against (1) the truck driver, Sisk, and his partner, doing business as G & R Trucking Company (hereafter 'G & R'), (2) L. C. Smith Construction Company (hereafter 'Smith'), the general paving contractor on the project, under a written contract with the State of California, and (3) W.S.P. Trucking Company (hereafter 'W.S.P.') to whom Smith subcontracted the hauling of asphalt to the project.

Plaintiffs appeal following a jury verdict in favor of all defendants, raising only points based upon the giving of or refusal to give certain jury instructions.

Smith's contract with the state provides in part: 'Contractor shall give his personal attention to the fulfillment of the contract and shall keep work under his control. No subcontractors will be recognized as such, and all persons engaged in the work of the construction will be considered as employees of the contractor, and he will be held responsible for their work, which shall be subject to the provisions of the contract and specifications.'

Smith notified W.S.P. that it would require six trucks and drivers to haul as phalt to the jobsite on the day of the accident. W.S.P. did not itself have enough units available. It arranged with G & R for it to furnish one truck and driver.

W.S.P. was paid $14.87 per hour by Smith for each unit furnished. W.S.P. would in turn pay a subhauler, such as G & R, the same amount per hour less five percent broker's fee or commission. G & R paid for its own driver, gas, oil, service and maintenance.

Smith dealt only with W.S.P. in arranging for the hauling of asphalt. It had no financial dealings with G & R or any other subhauler engaged by W.S.P.

W.S.P.'s president testified that all of their trucks were equipped with automatic backup warning devices, which cost $26 each. No inquiry was made by his company as to whether G & R's truck was so equipped.

One of the duties of the deceased in his employment by the state was to establish and mark a chalk line for the paving machine to follow. He was engaged in this duty at the time he was struck by the G & R truck.

The paving operation required trucks to dump loads of asphalt into the hopper on the front part of a paving machine. They would pull in some distance ahead, stop, and then back up to the paving machine, which would be moving slowly forward and putting down a layer of asphalt.

Was the Safety Order Applicable to G & R?

At the time of the accident, Division of Industrial Safety, Construction Safety Order 1576(e) provided:

'(e) Warning Device. Every truck with a body capacity of two and one-half cubic yards (2 1/2 cu. yds.) or more, that is used to haul dirt, rock, concrete or other construction material, shall be equipped with a warning device that operates automatically while the vehicle is backing. The warning sound shall be of such magnitude that it will normally be audible from a distance of two hundred feet (200 ). All haulage vehicles shall be equipped with a manually operated warning device which can be clearly heard for a distance of two hundred feet (200 ) from the vehicle. This manual device is an acceptable substitute for the automatic one, provided that it is sounded just prior to or immediately following the start of backing. Another acceptable substitute for the use of a back-up warning device is a signalman, in clear view of the operator, who directs the backing operation.'

The undisputed evidence is that: (1) the G & R truck did not have a backup warning device; (2) it gave no signal or warning of its backing movement; and (3) no signalman or anyone else directed such movement.

Immediately following the reading of the above safety order to the jury, it was given the following instruction requested by appellants, as Modified by the court: 'If you find that L. C. Smith Company or W.S.P. Trucking Company violated a statute or safety order just read to you, you will find that such violation was negligence, unless you find by a preponderance of the evidence that such defendant did what reasonably might be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law.' (Italics ours.)

The instruction, As requested by appellants, read: 'If you find that a party to this action violated * * *.' By striking out 'a party to this action' and inserting in place thereof, 'L. C. Smith Company or W.S.P. Trucking Company,' the court was by necessary implication instructing the jury that the safety order just read to them applied only to Smith and W.S.P. In other words, the jury was told that G & R did not have to comply with such safety order even though it was the owner of the truck involved in the accident and one of its partners was driving it. This was error.

It was not cured, in our opinion, by the use of the word 'defendants' in an instruction ¹ given thereafter, Which related to the issue of assumption of risk.

In Armenta v. Churchill (1954) 42 Cal.2d 448, 267 P.2d 303, a wrongful death action brought against the owner and driver of a dump truck loaded with paving material which backed over the decedent while he was making a guideline for an asphalt paving machine to follow, the trial court refused to receive in evidence or instruct the jury on the construction safety order then in effect, which order is the predecessor of and essentially the same as the present Safety Order 1576(e). This was held to be prejudicial error, the Supreme Court stating, at page 453, 267 P.2d at p. 306:

'The order was issued by the Division of Industrial Safety in conformity with the provisions of sections 6312 and 6500 of the Labor Code, being a measure for the protection and safety of workmn in their places of employment. It is directed to trucks in their hauling of construction materials and recognizes the need for specific rules to cover their operation on jobsites. Workmen, as they pursue their assigned tasks amid noisy surroundings, cannot be expected to keep constantly on the lookout for backing trucks. All trucks used for the specified purposes are Subject to the terms of the safety order with regard to the prescribed equipment and required use of a horn, bell or whistle while backing.' (Italics added.)

Respondents attempt to distinguish the Armenta case by saying that there the decedent 'was a 'workman' apparently employed by the general contractor, whereas in this case the decedent was a state employee, not an employee of the general contractor or of a subcontractor.'

This is a distinction without a difference, as we shall next point out. Was Decedent Within the Class of Persons Protected by the Safety Order?

Respondents assert that, 'under the present status of the law, decedent was not within that class of persons intended to be protected by the Labor Code Sections and the Construction Safety Orders.'

The basis of this assertion is that the 'decedent was not an 'employee' of either the general contractor or any of its subcontractors' and 'it cannot be said that he was 'invited' by the general contractor' to be on the jobsite.

The question of who comes within the class of persons protected by such safety orders was thoroughly discussed by our Supreme Court in Porter v. Montgomery Ward & Co., Inc. (1957) 48 Cal.2d 846, 313 P.2d 854.

There a customer in a store fell while descending a 96-inch wide stairway which had no center handrail. This was a violation of a safety order issued by the Division of Industrial Safety which required that stairways 88 inches or more in width be equipped with a center railing.

The opinion states: 'The principal contention of defendant (store) is that the court erred in admitting the safety order in evidence and in giving the quoted instruction ² because, it is asserted, plaintiff was not a member of the class for whose protection the order was designed. In this connection, it is argued that sections 6312 and 6500 of the Labor Code, which empower the Division of Industrial Safety to provide for safety in every place of employment and to issue the type of order involved here, were enacted pursuant to sections 17 1/2 and 21 of article XX of the Constitution, that those constitutional provisions only authorize legislation affecting the employer-employee relationship, and that, therefore, safety orders issued by the division may not be regarded as applying to members of the general public, such as plaintiff.

'The cases of Pierson v. Holly Sugar Corp., 107 Cal.App.2d 298, 237 P.2d 28, Nungaray v. Pleasant Valley, etc., Assn., 142 Cal.App.2d 653, 300 P.2d 285, Armenta v. Churchill, 42 Cal.2d 448, 267 P.2d 303, and Rodin v. American Can Co., 133 Cal.App.2d 524, 284 P.2d 530, are contrary to the position taken by defendant. In Pierson v. Holly Sugar Corp., Supra, the plaintiff was not an employee of the...