Bryant v. Tulare Ice Co.
| Decision Date | 27 May 1954 |
| Citation | 125 Cal.App.2d 566,270 P.2d 880 |
| Court | California Court of Appeals Court of Appeals |
| Parties | BRYANT et al. v. TULARE ICE CO. et al. GOODRICH et al. v. TULARE ICE CO. et al. Civ. 4903, 4904. |
Lane Williams, Encino, for appellants.
Crowe, Mitchell & Hurlbutt, Visalia, for respondents.
These are actions for the wrongful death of Wiley S. Bryant and Nancy M. Bryant, who were killed in a collision between the car in which they were riding and an ice truck driven by Leonard Dewaine Brownlee, an employee of the ice company. The accident happened about 5:30 P. M. on September 27, 1952, on Highway 99, about 2 1/2 miles north of Tulare.
The respondent Edgeworth was the sole owner of an ice company in Tulare, which he conducted under the fictitious name of Tulare Ice Company. He had employed Leonard Brownlee, who was 16 years old, for some four months preceding the accident, to cut ice and wait on customers at his place of business. At 7:00 o'clock on the morning of September 27, Edgeworth found that his regular driver for his 1936 model Ford panel delivery truck would not be able to drive the same because of an injury to his hand. Being unable to obtain anyone else experienced in cutting ice and servicing iceboxes Edgeworth had Leonard take over the route that day, accompanied by the regular driver. In servicing the route that day Leonard drove the truck in and about the city of Tulare and on the adjacent highways for a distance of approximately 75 miles. This truck had been overhauled, including the front end and steering apparatus, about two weeks before that day, after which it was tested by the mechanic who did the work and by Edgeworth, and was found to be in good condition. Nothing was observed by Leonard on the day of the accident to indicate that it was not in perfect mechanical condition until the time of the accident. The accident occurred on the last trip which Leonard was to make that day while he was taking 600 pounds of ice to the Tagus Ranch, about five miles north of Tulare. The regular driver did not go along on that trip, but another boy, a friend of Leonard's, went with him.
At the time and place of the accident Mr. and Mrs. Bryant were driving south on Highway 99 in a 1938 model coupe. According to the driver of a vehicle which was following them they were driving at between 35 and 40 miles an hour, were on their own right-hand side of the road, were proceeding in a straight line, and the course of their vehicle was not changed up to the point of impact. The vehicle then being driven by Leonard Brownlee in a northerly direction along this highway suddenly went out of control, veered abruptly across the white center line and struck the other car in the south-bound lane of traffic. Mr. Bryant, who was then 77 years of age, and Mrs. Bryant who was then 75 years old, were killed in the collision. An experienced mechanic who examined the Ford panel truck a few days after the collision testified that he found that both of the bolts or rivets at one end of the cross member, to which the radius rod or wishbone of the vehicle was attached, were gone; that in his experience he had found this condition in other vehicles; that this condition is caused by the wear and twist of the frame as it is in use over the years, causing these bolts or rivets to eventually work loose or break and fall out; that when this happens the wheels of the vehicle can turn without any corresponding turn of the steering wheel; and that when this occurs the vehicle goes out of control and there is nothing that the driver can do about it.
The plaintiffs in one of these actions are the seven adult sons and daughters of Mrs. Bryant. The plaintiffs in the other are the eight adult sons and daughters and two grandchildren of Mr. Bryant. The actions were consolidated for trial, and a jury returned a verdict in favor of the defendants. Motions for judgment notwithstanding the verdict and motions for a new trial were denied, and the plaintiffs have appealed from the judgments and from the orders denying their motions for judgment notwithstanding the verdict. The appeals are presented together.
It is first contended that it appears, as a matter of law, that each defendant was guilty of negligence; that Leonard Brownlee was negligent as a matter of law, in driving on the wrong side of the highway, and in taking the truck on the highway because of his lack of experience, since he did not have a chauffeur's license and had received a temporary operator's license only four weeks before; that Edgeworth was negligent as a matter of law, being charged with knowledge that the boy was incompetent to drive the ice truck since he had little knowledge of the boy's driving qualifications, and knew that the boy was too young to have a chauffeur's license; and that Edgeworth was negligent as a matter of law in hiring an unlicensed chauffeur to drive the truck.
The fact that the accident occurred on the wrong side of the road does not establish negligence on the part of the driver of the truck, as a matter of law....
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