Armenta v. Churchill

• Decision Date: 05 March 1954
• Citation: 42 Cal.2d 448,267 P.2d 303
• Court: California Supreme Court
• Parties: ARMENTA et al. v. CHURCHILL et al. L. A. 22902.

Page 303

267 P.2d 303

42 Cal.2d 448

ARMENTA et al. v. CHURCHILL et al.

L. A. 22902.

Supreme Court of California, In Bank.

March 5, 1954.

Victor C. Rose and Alfred M. Klein, Los Angeles, for appellants.

Parker, Stanbury, Reese & McGee and Raymond G. Stanbury, Los Angeles, for respondents.

SPENCE, Justice.

Plaintiffs, the widow and children of Amador Armenta, Sr., brought this action to recover damages for his wrongful death. The deceased, while working on a road-paving job, was killed when a dump truck backed over him. The truck was operated by defendant Dale Churchill, whose wife and co-defendant, Alece Churchill, was the registered owner. The jury found for defendants and judgment was entered in their favor. From such judgment and the order denying their motion for a new trial, plaintiffs have appealed. Since the order is not appealable, Code Civ.Proc. § 963; Pipoly v. Benson, 20 Cal.2d 366, 368, 125 P.2d 482, 147 A.L.R. 515, plaintiffs' appeal therefrom must be dismissed.

There is no dispute as to the facts. Plaintiffs contend, however, that the trial court committed prejudicial error in instructing the jury and in excluding certain evidence. Their objections are in part well taken; and accordingly the judgment must be reversed.

The fatal accident happened on Tyler Avenue, a county highway in Los Angeles County, where an 8-foot strip of the street was being resurfaced with 'black top,' an asphaltic pavement. A mobile machine known as a 'Barber-Greene' was used to distribute the paving material. This machine, in continuous motion, moves forward about 25 feet per minute and needs to be fed a constant supply of paving material. Several trucks were required to bring the necessary supply from a distance of about six miles. According to the customary procedure, each truck, taking its turn, would be placed in position so that its rear would face the front of the Barber-Greene, towards which the truck would then back and deposit the paving material. Dale Churchill, driving one of the trucks down Tyler Avenue, passed the Barber-Greene facing in that same direction and stopped 75 to 100 feet in front of it. At that time there was another truck unloading. As the Barber-Greene advanced slowly, Churchill kept his truck moving so as to be 75 to 100 feet in front of it, and when the other truck left, he commenced backing toward the Barber-Greene at about two miles per hour. The deceased was a 'stringman,' whose duty was to stretch a cord in front of the Barber-Greene as a guide for laying out the pavement in a straight course. He was so engaged, standing with his back to Churchill's moving truck, when he was struck and run over at a point some 30 to 40 feet in front of the Barber-Greene and 4 feet from the edge of the paving area. At the time Churchill was partly sitting in the driver's seat of the truck, with his right foot on the throttle and his left on the running-board, guiding the truck and looking to the rear. From such position he could not see the right rear of the truck, which was the part that struck and ran over the deceased. The Barber-Greene was then operating with a great deal of noise, considerably more than that produced by the truck. Churchill at no time blew his horn while backing his truck.

Plaintiffs first contend that the court erred by refusing to receive in evidence, and to include in its instructions to the jury, Construction Safety Order 1753(b) of the Administrative Code. Said order reads: 'Trucks used to haul dirt, rock, concrete or other construction material shall be equipped with a horn, bell or whistle on both the front and rear ends, or with a horn capable of emitting a sound audible under normal operating conditions from a distance of not less than two hundred feet (200 ) in the rear of the truck, provided the warning will be sounded while the truck is backing up.' (Emphasis added.) Plaintiffs maintain that Churchill's violation of this safety order through failure to sound his horn as he backed the truck constituted negligence per se and so was material evidence bearing on the issue of defendants' liability. Defendants argue that the regulation was properly excluded from the jury's consideration for these reasons: (1) It is unreasonably discriminative in that it applies only to trucks hauling certain materials; (2) it is fatally uncertain in that it does not define the term 'construction material'; and (3) it invades the field of legislation which is preempted by section 671(b) of the Vehicle Code. There is no merit in these objections.

Safety Order 1753(b) is contained in Title 8 of the Administrative Code, entitled 'Construction Safety Orders,' applicable to 'the excavation, construction, alteration, repairing, renovating, removal or wrecking of buildings or other structures.' (Emphasis added.) Admin. Code, Title 8, art. 2, § 1506. The repair and resurfacing of a highway would come within the phrase 'or other structures' State ex rel. West Virginia Sand & Gravel Co. v. Royal Indemnity Co., 99 W.Va. 277, 128 S.E. 439, 443, 43 A.L.R. 552; State for Use of E. I. Du Pont de Nemours & Co., 103 W.Va. 676, 138 S.E. 324, 328; City of Rock Island v. Industrial Commission, 287 Ill. 76, 122 N.E. 82, 83, as a construction project affixed to real property. See Rae v. California Equipment Co., 12 Cal.2d 563, 567-568, 86 P.2d 352. 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 workmen 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 operations 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. The constitution does not prohibit legislative classification. ' (T)he mere production of inequality which necessarily results to some degree in every selection of persons for regulation does not place the classification within the constitutional prohibition.' People v. Western Fruit Growers, 22 Cal.2d 494, 506, 140 P.2d 13, 20. There is nothing unreasonable or arbitrary in this safety order which would require us to hold unconstitutional such classification. Martin v. Superior Court of Sacramento County, 194 Cal. 93, 100-101, 227 P. 762.

Nor is Safety Order 1753(b) in its reference to 'construction material' too vague and uncertain to enable a person to know what is thereby included. See In re Peppers, 189 Cal. 682, 688, 209 P. 896. The order must be reasonably interpreted, Civ.Code, § 3542; 23 Cal.Jur. § 104, p. 722, and, so far as possible, given a construction which will render it valid rather than void. 23 Cal.Jur. § 132, p. 757; Medical Finance Ass'n v. Wood, 20 Cal.App.Supp.2d 749, 753, 63 P.2d 1219. It is a regulation expressly applying to trucks hauling 'dirt rock, concrete or other construction material,' an enumeration of particular items commonly identified with heavy, substantial building operations. Under the doctrine of ejusdem generis, the concluding words 'other construction material' would take color from the preceding listing and be limited to substances ordinarily associated in that same class. Civ.Code, § 3534; 23 Cal.Jur. § 130, p. 755; Treasure Island Catering Co. v. State Board of Equalization, 19 Cal.2d 181, 188, 120 P.2d 1. As was said in Smulson v. Board of Dental Examiners of State of California, 47 Cal.App.2d 584, at page 587, 118 P.2d 483, at page 484: 'It is not required that even a penal statute, to be valid, have that degree of exactness which inheres in a mathematical theorem.' So here the safety order may be readily understood, and no difficulty should be encountered in its practical application.

Section 671(b) of the Vehicle Code provides: 'The driver of a motor vehicle when reasonably necessary to insure safe operation shall give audible warning with his horn. Such horn shall not otherwise be used.' (Emphasis added.) Defendants argue that this section covers the entire subject of the necessity for sounding of a horn when traveling on a highway, leaving no room for any additional regulation in that field. In support of their position they cite Pipoly v. Benson, 20 Cal.2d 366, 373, 125 P.2d 482, 486, 147 A.L.R. 515, where a local ordinance which entered 'a field intended to be occupied fully by the state legislation' was held invalid. But the situation here is clearly distinguishable. Sections 6312 and 6500 of the Labor Code expressly recognize the need for safety measures for the protection of workmen at their places of employment; and pursuant to the express authority found in those sections, the Division of Industrial Safety issued Safety Order 1753(b) regulating truck backing operations and declaring, in effect, that the sounding of the warning was 'reasonably necessary to insure safe operation' during such backing. The codes must be regarded as blending into each other and forming a single statute. 23 Cal.Jur. § 169, p. 791; In re Porterfield, 28 Cal.2d 91, 100, 168 P.2d 706, 167 A.L.R. 675. The safety order was but a more specific safety requirement imposed under the authority of the cited sections to take care of the exigencies of a particular situation; and it was complementary to, rather than inconsistent with, section 671(b) of the Vehicle Code. Government Code, § 11374; 2 Cal.Jur.2d § 71, p. 143, et seq.

Plaintiffs therefore must be sustained in their contention that the trial court committed prejudicial error in rejecting their offer in evidence of Safety Order 1753(b) and in refusing to instruct the jury thereon. The safety order, of which courts take judicial notice, Martin v. Food Machinery Corporation, 100...