Hansen v. Matich Corp.

• Decision Date: 30 April 1965
• Citation: 44 Cal.Rptr. 149,234 Cal.App.2d 129
• Court: California Court of Appeals Court of Appeals
• Parties: Thelma Jane HANSEN, Plaintiff and Respondent, v. MATICH CORPORATION, Defendant and Appellant. Civ. 460.

Page 149

44 Cal.Rptr. 149

234 Cal.App.2d 129

Thelma Jane HANSEN, Plaintiff and Respondent, v. MATICH CORPORATION, Defendant and Appellant.

Civ. 460.

District Court of Appeal, Fifth District, California.

April 30, 1965.

Wilson & Wilson and William H. Wilson, San Bernardino, for defendant and appellant.

Harney, Ford & Schlottman and David M. Harney, Los Angeles, for plaintiff and respondent.

STONE, Justice.

Defendant appeals from a judgment for plaintiff, who sustained personal injuries in a single car accident that occurred about 3 a. m. on Big Bear Boulevard near Big Bear Lake. The accident is alleged to have been caused by a defect in the roadway. Defendant was under contract with the State of California to reconstruct a portion of Big Bear Boulevard, which is also State Route 190-G, and it had worked in the area approximately four days before the accident occurred. The appeal rests largely upon contradictions in the evidence.

There was testimony that plaintiff had been drinking preceding the accident, and that she was disturbed because a man, whom she was on her way to confront, had accused her son of the theft of an automobile.

Plaintiff testified, however, that she was familiar with the area, that she was driving at a reasonable and ordinary speed for the roadway in that area as she knew it, and within the speed limit, that it was a dark, cloudy night, and that she was unaware of the road construction work when her Chevrolet station wagon struck a hole or depression in the surface of the roadway. Plaintiff's evidence reflects that defendant, by its road construction activities, created a depression of some sort in the roadway, that no warning of any type was erected by defendant, that her car struck the depression and overturned, ejecting her, causing injuries resulting in permanent disability.

Defendant's first assignment of error is directed at the granting of plaintiff's motion to amend her complaint and the pretrial order. The complaint alleged an excavation or depression extending across the entire roadway of a width of about 6 feet and a depth of about 6 inches, at a point approximately 150 feet west of Drake Road and, further, that defendant negligently created the excavation. The pretrial order specified as an issue the alleged negligence of defendant in creating an excavation, in permitting the excavation to exist, and failure to warn of it.

It developed at the trial that the scene of the accident was some distance from that alleged, and testimony as to the condition of the roadway varied from the allegations in the complaint. Permission was granted plaintiff to amend her complaint to conform to the proof by changing the location of the accident from approximately 150 feet west of Drake Road to 'just east of Maple Lane'; by adding after the allegation 'depression' the words 'or rough area'; and by striking the language 'which ran across said route in a generally northerly-southerly direction of width of about six feet and a depth of about six inches.' The pretrial order was likewise amended to conform.

We find no error in the order granting permission to amend pleadings during trial. All of the evidence was before the jury, defendant was not taken by surprise, and no new cause of action was stated. Squarely in point are the observations of the court in Feykert v. Hardy, 213 Cal.App.2d 67, at page 75, 28 Cal.Rptr. 510, at page 515:

'The allowance or disallowance of amendments to pleadings during the course of the trial rests largely in the discretion of the trial court [citation] and its ruling will not be disturbed unless it clearly appears that such discretion has been abused. [Citation.] The trial court has a wide discretion in such matters where the purpose of the amendment is to raise new issues after the pleadings have been settled and the trial has commenced.'

Defendant also attacked the sufficiency of the evidence, and devoted a major portion of its brief to the facts. Plaintiff, to offset defendant's argument, likewise devoted much more of her brief to the facts than is usual. But it is apparent both sides are quite familiar with the cases holding that the resolution of conflicting evidence is for the trier of fact. (Florez v. Groom Development Co., 53 Cal.2d 347, 354, 1 Cal.Rptr. 840, 348 P.2d 200.) It is equally clear that defendant's real purpose in stating the facts in detail is to provide groundwork for its contention that the court erred in submitting to the jury instructions on the rule of res ipsa loquitur.

We shall discuss the evidence by relating it to the three conditions upon which the applicability of res ipsa loquitur rests; they are:

'(1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.' (Prosser, mtorts [3d ed. 1964] p. 218.)

(See Ybarra v. Spangard, 25 Cal.2d 486, 489, 154 P.2d 687, 162 A.L.R. 1258; Shahinian v. McCormick, 59 Cal.2d 554, 559, 30 Cal.Rptr. 521, 381 P.2d 377.)

The first of these conditions is clearly present, since an accident of this character ordinarily does not occur in the absence of someone's negligence. The second condition, defendant strongly urges, was not met since the agency or instrumentality causing the injury was not within its exclusive control. The gist of defendant's argument is that the accident occurred on a roadway in the early morning hours, at a time when none of its employees were at the scene either working or directing traffic, so that the road was not within its exclusive control. It also contends that the state as owner of the highway, had at least an equal right to control.

However, by contract the state relinquished to defendant control over the roadway, at least to the extent necessary to rebuild or improve the roadway, and this authority continued in defendant until the work was completed. In rebuilding and repairing the road, it was defendant's duty to construct detours, to control traffic, and to reroute traffic when necessary. When defendant permitted the public to use any portion of the highway upon which work was uncompleted, manifestly it had a duty to maintain the roadway in a condition safe for public travel. This included providing warning barriers, warning signs, lights and other signals for traffic safety. Thus defendant had control in the sense the word 'control' is used in the second condition upon which applicability of res ipsa loquitur rests.

Recent cases are not in accord with the limited view of defendant that the language 'within the exclusive control of the defendant' means control at the time the accident happens. Exclusive...