Meschini v. Guy F. Atkinson Co.

• Decision Date: 19 May 1958
• Citation: 160 Cal.App.2d 609,325 P.2d 213
• Court: California Court of Appeals Court of Appeals
• Parties: A. Arthur MESCHINI, by his General Guardian, Helen M. Palmer, Plaintiff and Appellant, v. GUY F. ATKINSON COMPANY, a corporation, Delmer Ellis Furrer and Jack H. Keller, Defendants and Respondents. Civ. 9159.

Page 213

325 P.2d 213

160 Cal.App.2d 609

A. Arthur MESCHINI, by his General Guardian, Helen M. Palmer, Plaintiff and Appellant, v. GUY F. ATKINSON COMPANY, a corporation, Delmer Ellis Furrer and Jack H. Keller, Defendants and Respondents.

Civ. 9159.

District Court of Appeal, Third District, California.

May 19, 1958.

Rehearing Denied June 11, 1958.

Hearing Denied July 16, 1958.

Law Offices of C. Ray Robinson, Merced, and Angell & Adams, San Francisco, for appellant.

Stammer, McKnight & Barnum, Fresno, for respondent.

PEEK, Justice.

This is an action to recover damages for personal injuries sustained as the result of a collision between an automobile driven by plaintiff and a Euclid tractor and scraper combination operated by the defendant Furrer and owned by the defendant Guy F. Atkinson Company, referred to herein as Atkinson. Plaintiff appeals from the judgment entered pursuant to the verdict of the jury.

The second amended complaint set forth three causes of action against the defendants: The first alleged a dangerous condition and negligent operation of the Euclid; the second was predicated upon the alleged dangerous and negligent operation of the convoy; and the third alleged the operation of a convoy of vehicles in excess of the maximum width and weight as permitted by the applicable sections of the Vehicle Code, all of which directly and proximately caused the collision and plaintiff's injuries.

The defendant's answer admitted the collision and the operation of the convoy but denied generally the allegations of the complaint relating to negligence and proximate cause, and as affirmative defenses pleaded contributory negligence and assumption of risk.

As a result of the collision plaintiff suffered serious injury and was unable to testify. His wife, who was an occupant of the car at the time of the accident, suffered a loss of memory of the accident and of the events immediately preceding it and likewise was unable to testify in any particular regarding the accident. There were no disinterested eyewitnesses; hence the record consists primarily of photographic evidence and the testimony of Atkinson's employees.

The collision occurred on a clear day on the bridge spanning Berenda Slough on U. S. Highway 99, immediately southeast of Chowchilla in Madera County. The bridge which was approximately 24 feet wide and 500 feet long was surfaced with asphalt. In the absence of an obstruction, such as other vehicles, it could be seen from the south for a distance of from one-quarter to one-half mile. A white line separating the north and south lanes of traffic was not in the exact center of the roadway. At the south end of the bridge the northbound lane was 12'3 7/8"' wide, and the southbound lane was 11'8 5/8"' wide. One hundred feet farther north the northbound lane was 12'2 5/8"' wide and the southbound lane was 11'11"' wide. Along each side were narrow concrete curbs and then wooden bridge railings. At both ends of the bridge the highway was 24 feet wide and, in addition, had a 4-foot shoulder on either side.

Defendants' convoy was traveling south and included first a Ford pickup truck driven by defendant Keller, Atkinson's foreman; then five DW-20 Caterpillar tractor and scraper combinations; then one Euclid tractor and scraper; and finally two Ford flatbed trucks. The Caterpillar tractors and scrapers were each 11'7"' wide and the overhall length of each was approximately 44 feet. Only the Euclid appears to have been directly involved in the collision. It was an earth-moving machine consisting of a large tractor trailing a bucket type scraper or dirt remover. It was 11'6"' wide, somewhat over 40 feet long, and it weighed approximately 25 tons when empty.

On the left side of the front bumper of the pilot car was a 3' X 4' sign reading 'Caution Wide Load Following' which had been issued by the Department of Motor Vehicles. An 18"' X 20"' red flag extended out diagonally from the left front corner of the sign. As the convoy proceeded across the bridge, the defendant Keller held a similar red flag out of the lefthand window of the Ford pickup he was driving and waved it up and down until he was some distance past the bridge. Each unit of the convoy following the pilot car was equipped with two red flags extending diagonally from each end of the front bumper. The maximum speed of the Caterpillars and the Euclid was governed at 30 miles an hour. Estimates of the speed of the convoy as it traveled across the bridge varied from 15 to 25 miles per hour.

The plaintiff who was driving north had been passing the convoy for approximately a quarter of a mile and was immediately to the rear of a Ford automobile. His speed was estimated at from 40 to 70 miles an hour. The Pontiac car which he was driving was 6'4 5/8"' wide at the widest point and 16'10 3/4"' long. The last of the five DW-20 tractors was just leaving the bridge as plaintiff's northbound automobile entered onto the south end. According to the defendant Furrer, to his knowledge he did not drive the Euclid over the center line on the bridge, nor did he see the Caterpillar driven by Harris, which was directly ahead of him, cross the line. The defendants Dodson, who was driving the truck immediately to the rear of the Euclid and Harris testified they did not see the Euclid cross the white line. Harris, however, testified that he could have driven his Caterpillar a foot or so over the line at some point on the bridge.

Furrer also testified that prior to driving onto the bridge he raised the bowl of the scraper, allowing it to clear the concrete curb, and turned on his headlamps. He estimated the southbound lane to be 13 to 14 feet wide, and the distance between his Euclid and the DW-20 immediately in front of him as approximately 200 to 250 feet. When he was nearly halfway across the bridge he saw an oncoming Ford car 100 to 125 feet south of the south edge of the bridge. He did not see plaintiff's car until it was some 250 to 300 feet north of the south end of the bridge and approximately 75 feet from his vehicle and traveling at 60 to 70 miles per hour. The Ford passed him at the same rate of speed with a clearance of three feet. 'All of a sudden, it [the Pontiac] seemed to just leap out from the bridge and come across into my lane of traffic and bump into me * * * the Pontiac hit me approximately dead center, with the Pontiac car, of [sic] my left front wheel.'

According to Furrer, immediately after the collision which occurred in the southbound lane, he lost control of the steering mechanism of the tractor and more or less careened into the northbound lane of traffic, going up and coming to rest on the top of the Pontiac.

Additional evidence was introduced to the effect that the Pontiac appeared to strike the easterly guard rail and then to careen or bounce into the southbound lane. There was further testimony, although conflicting, concerning the exact point where the impact occurred and also in regard to debris on the bridge and the skid marks made by plaintiff's car. Further conflicting testimony also appears regarding the place where plaintiff's wife was thrown on the highway. The testimony concerning the speed and stopping distance of the vehicles in the convoy was also in conflict. The defendant Keller estimated that the speed of the convoy in crossing the bridge was 15 to 20 miles an hour and that the Caterpillars and the Euclid, when operated at a speed of 15 miles per hour, could be stopped in 50 to 60 feet; at 20 miles an hour, 60 feet; and at 25 miles an hour, 60 to 70 feet. The defendant Furrer fixed the speed of the Euclid when crossing the bridge at 20 to 25 miles per hour and estimated that the equipment, when operated at 25 miles per hour would permit a stop within 80 to 90 feet; at 20 miles per hour, in 55 to 65 feet; and ...