Ellis v. City of Los Angeles

• Decision Date: 19 January 1959
• Citation: 334 P.2d 37,167 Cal.App.2d 180
• Court: California Court of Appeals Court of Appeals
• Parties: Jewell ELLIS and Homer Ellis, a minor, and Brenda Ellis, a minor, by their Guardian ad litem, Jewell Ellis, Plaintiffs and Respondents, v. CITY OF LOS ANGELES, a municipal corporation, Defendant and Appellant. Civ. 22974.

Page 37

334 P.2d 37

167 Cal.App.2d 180

Jewell ELLIS and Homer Ellis, a minor, and Brenda Ellis, a minor, by their Guardian ad litem, Jewell Ellis, Plaintiffs and Respondents, v. CITY OF LOS ANGELES, a municipal corporation, Defendant and Appellant.

Civ. 22974.

District Court of Appeal, Second District, Division 3, California.

Jan. 19, 1959.

Rehearing Denied Feb. 17, 1959.

Hearing Denied March 18, 1959.

Roger Arnebergh, City Atty., Bourke Jones, Asst. City Atty., Joseph N. Owen, Weldon L. Weber, Deputy City Attys., Los Angeles, for appellant.

Eric A. Rose and Everett E. Demler, Long Beach, for respondents.

SHINN, Presiding Justice.

Appeal by the City of Los Angeles from an order granting plaintiffs a new trial in an action under the Public Liability Act (Government Code, § 53051), for the wrongful death of Treva Ellis. The verdict of the jury was in favor of the defendant; upon a former trial the jury had disagreed.

In October 1953, the city entered into a contract with Ellis' employer, Peter Kiewit & Sons, Inc., and another firm for the construction of a new sewer. The contractors also undertook to remove an old abandoned 54-inch segmented tile and cement sewer lying directly in the path of the proposed sewer construction. The old sewer extended underneath the paved surface of Jefferson Boulevard between Rodeo Road and Higuera Street, a distance of approximately 1,100 feet. As Ellis was operating a pile-driving rig on Jefferson at a point midway between Rodeo and Higuera, the old sewer caved in and the rig toppled over on its right side, crushing him to death. At the location of the accident the sewer was 3 1/2 feet below the surface of the street.

Plaintiffs are the widow and two minor children of Ellis. Their theory of recovery was that the existence of an abandoned sewer 3 1/2 feet below the surface of the street constituted a dangerous and defective condition of public property, that the city had knowledge of the condition, and that it was liable to them in damages for failing to warn Ellis of the danger. Gov. Code, § 53051. Plaintiffs made a motion for new trial, which was granted upon the ground that the verdict was clearly against the weight of the evidence.

We have examined the transcript in the light of the well-established principle that unless, as a matter of law, a judgment in favor of the moving party would find no support in the evidence, the granting of a motion for new trial upon the ground of insufficiency of the evidence will not be disturbed on appeal. Brooks v. Metropolitan Life Ins. Co., 27 Cal.2d 305, 163 P.2d 689; Richardson v. Ham, 44 Cal.2d 772, 285 P.2d 269.

Jefferson Boulevard between Rodeo and Higuera was a heavily travelled thoroughfare, having a normal black-top surface and no noticeable defects or depressions. The city withdrew from public use and assigned exclusively to the contractors a 12-foot strip running along the north side of Jefferson from Rodeo to Higuera. Before work commenced, employes of the city had marked on the pavement within the 12-foot strip the center line of the proposed sewer as a guide for the contractors' employees.

The excavation of the old sewer and installation of the new proceeded as follows. First, two parallel slit trenches, each 18 inches wide and 10 feet deep, were dug along the outer edges of the 12-foot strip; dirt was removed from the trenches. Next, Ellis drove his rig along the strip and drove 36-foot steel pilings into the trenches along the outer walls. He backed along the strip, setting five pilings on one side, then moved forward and backed up over the same area setting an equal number of pilings on the other side. An excavating rig operated by Ellis' co-worker, Kinsey, then removed the dirt and other materials between the two rows of pilings; steel was set and concrete poured for the new sewer; the excavation was then back-filled, the pilings extracted and the street re-surfaced.

Ellis' rig, together with its attachments, weighed approximately 71 tons and was 11 feet 6 inches wide. It operated on 15-foot tracks, each 33 inches wide. The rig had 8,400 pounds of counterweight. The pilings dropped of their own weight to the bottom of the trenches and were driven into the ground further by means of a steam hammer which struck between 85 and 130 blows per minute, exercising a force of 13,500 pounds. Vibrations caused by the hammer blows could be distinctly felt by persons standing several hundred feet away from the rig.

As we have said, the old sewer was found to be 3 1/2 feet below the surface at the place where the accident occurred. According to the plans furnished to Ellis' employer by the city, the sewer was between 3 and 3 1/2 feet deep along Jefferson Boulevard to a point 600 feet west of Rodeo. The plans were kept in the Kiewit office at the job site. Ward White, Kiewit's project superintendent, had checked them before work started and knew what they disclosed about the location of the old sewer. He gave this information to Brigance, the pile superintendent, but he did not disclose it to Ellis or to Wampler, Ellis' foreman and immediate superior. Wampler and Kinsey both testified that they had no knowledge of what the plans disclosed about the depth of the old sewer.

Workmen excavating at the corner of Higuera and Jefferson some time before Ellis' accident discovered that the old sewer was 11 feet below the surface. About a week before Ellis' death, Kinsey was excavating on Jefferson at a point approximately 75 feet west of Rodeo. His rig, which was somewhat lighter than Ellis', sank into a segment of the old sewer which had collapsed due to trenching operations undertaken to run off some excess water; the exposed sewer was found to be between 8 1/2 and 9 feet below the surface at that location. Kinsey told Ellis what had occurred. In order to prevent a recurrence, Kinsey was told by his superiors to operate his rig across rather than lengthwise of the 12-foot strip.

John Bannister and Albert Anderson were city inspectors employed full-time at the job site. The former was senior engineer for the Board of Public Works, the agency charged with the maintenance of streets and sewers in Los Angeles, and the latter was his assistant. Both men were familiar with the equipment and methods used in sewer construction; according to Bannister, Ellis' employer used normal methods and equipment. The inspectors testified that their duties consisted in making sure that the work proceeded in accordance with the plans and specifications; they had no authority to direct the contractors as to the manner of doing the work and it was established that they gave no directions. The inspectors were familiar with the maps kept in Kiewit's office and knew that the sewer was 3 1/2 feet below the surface of Jefferson Boulevard at the point where Ellis later had his fatal accident. They were also familiar with the circumstances of Kinsey's accident. Bannister attended weekly safety meetings held for Kiewit's foremen at which times measures for the protection fo the general public were discussed. Although it took Ellis approximately two weeks to drive pilings from Rodeo to the location of the accident, a distance of 525 feet, and although they observed him daily, the inspectors did not inform him of the depth of the old sewer and did not suggest to his superiors the possibility that the sewer might collapse under the rig.

Ward White testified that although he had seen the maps and knew that the sewer was deeper at both ends on Jefferson than the maps indicated, he made no effort to test their accuracy. This was for the reason that the sewer was a gravity-flow sewer, and he assumed that its depth would vary between 8 1/2 feet at Rodeo and 11 feet at Higuera. White testified, as did Bannister and Anderson, that the possibility that the sewer might give way under Ellis' rig had never occurred to him.

Thomas C. Shields, an expert witness called by plaintiffs, gave his opinion that the weight of Ellis' rig, if distributed evenly over the ground, would be about 2,900 pounds per square foot on the surface; if only one-fourth of the area of the treads rested on the ground, the weight per square foot would be 11,600 pounds on the surface. In his opinion, a rig would not tip over unless only one-fourth to one-third of its treads rested on the ground. He also stated his opinion that the trenches cut by the contractors tended to deprive the sewer of lateral support. In White's opinion, the pressure per square foot exerted by the rig when only one-fourth of its tread area rested on the ground would be approximately 130 pounds at a point 4 feet below the surface of the street. If a rig is properly counterweighted and if an excessive weight is not placed on the boom, the tracks will remain flat on the ground and the weight of the rig will be evenly distributed over the area occupied by the machine.

The city contends that the method employed by the contractor was the sole cause of the accident and that it cannot be held liable for the negligence of an independent contractor. Plaintiffs do not contend that the city would be liable for the contractor's negligence but correctly assert that if both were guilty of negligence which contributed proximately to the accident the negligence of the contractor would not relieve the city of liability. Irvin v. Padelford, 127 Cal.App.2d 135, 141, 273 P.2d 539; Bady v. Detwiler, 127 Cal.App.2d 321, 333, 273 P.2d 941, and cases cited. The question is whether the city was negligent.

If liability existed on the part of the...