Mart v. Riley

• Decision Date: 26 January 1966
• Court: California Court of Appeals Court of Appeals
• Parties: Donald A. MART, Plaintiff and Respondent, v. Charles W. RILEY, Sr., et al., Defendants and Appellants. Civ. 10961.

Page 6

49 Cal.Rptr. 6

239 Cal.App.2d 649

Donald A. MART, Plaintiff and Respondent, v. Charles W. RILEY, Sr., et al., Defendants and Appellants.

Civ. 10961.

District Court of Appeal, Third District, California.

Jan. 26, 1966.

Rehearing Denied Feb. 23, 1966.

Hearing Denied March 22, 1966.

Rodric L. Robinson, San Francisco, and William J. Braun, Redding, for appellant.

Carlton & Asbill, by Daniel S. Carlton, Redding, Kiernan & Misciagna by N. A. Misciagna, San Francisco, for respondent.

VAN DYKE, Justice pro tem.

This appeal is from a judgment entered on a verdict awarding damages to plaintiff Donald A. Mart for personal injuries alleged to have been suffered by him through the negligence of defendants-appellants. Plaintiff-respondent was a laborer employed by M. W. Brown, a highway contractor, then engaged in building a county road in southwestern Shasta County. The work required that a seal coat of oil be applied to the road surface, after which sand was to be spread over the oil. For the performance of this work appellants rented to Brown a dump truck and furnished a driver for its operation. When the truck arrived at the site of the work, Brown attached a gasoline-driven sand spreader to the tail gate of the truck. As a means of getting the sand into the spreader Brown cut a hole about a foot square in the tail gate. Brown's plan of operation contemplated that sand would move through the hole into the hopper of the spreader; and to facilitate and regulate the supply of sand one or two men with hand shovels would work in the truck near the tail gate, shoveling sand through the hole. There was much evidence that this was a common and accepted method of doing the work. The operation also involved driving the truck slowly backward along the oiled surface to prevent the wheels from running over unsanded oil. The truck was first loaded with about 14 tons of sand. Respondent and a laborer named Castillo were assigned by Brown's foreman to work with the driver. There was evidence of the following facts: When sanding began Castillo was stationed in the bed of the truck which had been tilted at a slight angle to facilitate the movement of sand. Respondent and foreman Gage were on the ground moving alongside the truck. After about 300 yards of sanding, Castillo was unable to keep the spreader supplied and the foreman ordered respondent to get into the truck bed to help. To enable him to do this, the truck stopped and started up again when he had taken his position on the truck. The truck started with a jerk, the truck bed rose suddenly to an angle of about 45 degrees. The load of sand shifted toward the tail gate which failed to hold and respondent and the load of sand avalanched down onto the roadway. As he went down respondent came in contact with the revolving blade of the spreader. He suffered serious injuries.

The foregoing history of the accident was that of several eyewitnesses. The driver's version was much in conflict therewith. He said that when he was sent to the job by appellants with his truck, he did not know a spreader was to be attached and had never used one. But when told by Brown this was to be done and that Brown had so arranged with appellants he made no objection. When the spreader had been attached and his truck loaded he proceeded to back along the road with the truck bed tilted to cause sand to flow toward the hopper. He said he did not know that either respondent or Castillo were to be working in the truck shoveling sand and would not have allowed it if he had known; that he never saw them there. He denied any jerking of the truck, denied any sharp tilting. He gave no explanation of why the sand swept down, tore out tail gate and deposited the sand and respondent on the road. He did say that as the truck approached an intersection that had already been sanded Gage, Brown's foreman, who had been running along ahead of the truck to direct him as to speed, yelled at him to speedup to prevent double sanding of the intersection; that he speeded up across the intersection, then took his foot off the accelerator, the truck lurched and he saw the sand hit the road.

It appears from the evidence that it was the sudden jerk or lurch of the truck and, as some testified, sudden sharp elevation of the bed of the truck, together with the failure of the tail gate to hold, which caused respondent's injuries. Whether one, or the two in combination, is not material here because both are chargeable to appellants as being caused either by negligent driving or defective condition of the truck, or by both. Under the circumstances the rule res ipsa applies.

Respondent received workmen's compensation benefits from the insurance carrier for Brown and brought this action against appellants as third party tortfeasors responsible for his injuries. Brown's insurance carrier intervened.

Errors asserted on appeal revolve around instructions given, refused or modified and error in the receipt of evidence.

A pivotal question here is who, at the very time of the accident and in respect to the driving and operation of the truck, was the employer of the truck driver? As to this, we think there can be no dispute. Appellants Riley were the general employers of the truck driver at all times. '[W]hen a master hires out, under a rental agreement, the services of an employe for the operation of an instrumentality owned by the master, together with the use of the instrumentality, without relinquishing to the hirer the power to discharge such servant, to go where and perform such work as the hirer directs, the legal presumption is that, although the hirer directs the servant where to go and what to do in the performance of the work, the servant, as the operator of the instrumentality employed in the doing of the work, remains, in the absence of an agreement to the contrary, the servant of the general employer in so far as concerns the manner and method of operating the instrumentality.' (Billig v. Southern Pac. Co., 189 Cal. 477, 485-486, 209 P. 241, 244.)

A case similar to this one factually is McComas v. Al. G. Barnes Shows Co., 215 Cal. 685, 12 P.2d 630, where the defendant hired out an elephant and trainer to a movie studio. The trainer was negligent in securing a howdah on top of the elephant and as a result an actress was injured. The court said at page 691, 12 P.2d at page 633: '* * * If the uncontradicted evidence shows as a matter of law that Nance [the elephant trainer] was then in the employ of his general employer, the appellant, and that his special employer, the Wm. Fox Studio, had no direction or control over him in respect to the particular services out of which the accident arose, then the question as to liability for his negligence was not one for the jury.'

The physical facts of the accident here speak clearly as to the cause of respondent's injuries. It was the sudden tilting of the truck bed, aided, perhaps, by the jerking of the truck. Without the sudden tilting of the truck bed the accident could not have happened. The sand was somewhat damp and did not flow readily. The truck had been moving with the bed tilted slightly, estimated at about 5 degrees, which would facilitate the motion of the sand toward the tail gate. But unless the truck bed had been tilted to a high degree the sand could not have avalanched down against the tail gate and, having broken it open, swept down onto the road bearing respondent with it. Proper control of this tilting was the duty and function of the driver. The driver was shown, without conflict, to have been an experienced driver of dump trucks, and the evidence is without conflict that he went along with the truck under the rental contract as the employee of appellants, charged with the duty of operating the truck. He was operating the truck at the instant of the accident. It is true that as the truck moved backward over the oiled road surface Brown's foreman, going along beside the truck, gave signals to the driver as to the speed the truck was to proceed and as to increased tilting of the truck bed, nevertheless, these things did not work change of employers. As said in Doty v. Lacey, 114 Cal.App.2d 73, 79-80, 249 P.2d 550, 554: '* * * The giving of signals * * * was not the giving of orders, but of information; and obedience of the signals shows cooperation rather than subordination, and is not sufficient to show there has been a change of employer. * * *' We think it clear from the record that throughout the sanding operation the truck driver was the employee of appellants as to the operation of the truck; that nothing done by Brown made him the driver's special employer at any time. In this connection we note that there is no evidence that the making of the hole in the tail gate weakened, or could have weakened, that structure and caused or contributed to its being torn out under the impact of the sliding sand.

Appellants complain of the giving of the following instruction at the request of respondent: 'Under the law of California an employer is charged with the negligence of his employee committed in the course and scope of his employment. Here the defendant, Knudson [the...