Raich v. Aldon Const. Co.

• Citation: 276 P.2d 822,129 Cal.App.2d 278
• Parties: Anna M. RAICH and Anna M. Raich as guardian ad litem for Ann Louise Raich, a minor, Plaintiffs and Respondents, v. ALDON CONSTRUCTION CO., Inc., a corporation, Pioneer Plaza, Inc., a corporation, William Malat, Donald Metz, Willard Woodrow, Ben Lesser, Riffa Leighton, as administratrix of the estate of Albert Leighton, deceased (substituted in the place of Albert Leighton, deceased), Engineering Service Corporation, a corporation, Crescent Development Company, a corporation (substituted in the place and stead of Doe One Corporation), Union Oil Company of California, a corporation, John Doe One to John Doe Twenty, Inclusive, Doe Two Corporation, Doe Three Corporation, Doe Four Corporation, Doe Five Corporation, Doe Six, a co-partnership, Doe Seven, a co-partnership, and Doe Eight, a co-partnership, Defendants. Aldon Construction Co., Inc., a corporation, Appellant. Civ. 20148.
• Decision Date: 01 December 1954
• Court: California Court of Appeals

Page 822

276 P.2d 822

129 Cal.App.2d 278

Anna M. RAICH and Anna M. Raich as guardian ad litem for Ann Louise Raich, a minor, Plaintiffs and Respondents, v. ALDON CONSTRUCTION CO., Inc., a corporation, Pioneer Plaza, Inc., a corporation, William Malat, Donald Metz, Willard Woodrow, Ben Lesser, Riffa Leighton, as administratrix of the estate of Albert Leighton, deceased (substituted in the place of Albert Leighton, deceased), Engineering Service Corporation, a corporation, Crescent Development Company, a corporation (substituted in the place and stead of Doe One Corporation), Union Oil Company of California, a corporation, John Doe One to John Doe Twenty, Inclusive, Doe Two Corporation, Doe Three Corporation, Doe Four Corporation, Doe Five Corporation, Doe Six, a co-partnership, Doe Seven, a co-partnership, and Doe Eight, a co-partnership, Defendants Aldon Construction Co., Inc., a corporation, Appellant.

Civ. 20148.

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

Dec. 1, 1954.

Rehearing Denied Dec. 21, 1954.

Hearing Denied Jan. 28, 1955.

Parker, Stanbury, Reese & McGee and J. H. Peckham, Los Angeles, for appellant.

Sheppard, Mullin, Richter & Balthis, Moore, Trinkaus & Binns, Henry T. Moore, and Thomas J. Koerber, Los Angeles, for respondents.

VALLEE, Justice.

Appeal by defendant Aldon Construction Co., Inc., from an adverse judgment in an action for alleged wrongful death. The action arose from the death of Leo Raich, caused by a fire which resulted when a trench digger operated by him in the construction of a sewer struck a submerged casing-head gasoline pipe in a public street. Plaintiffs Anna Raich, Leo's widow, and Ann Raich, his minor daughter, brought the action against defendants Aldon Construction Co., Inc., Pioneer Plaza Inc., Engineering Service Corporation, and Crescent Development Company. The cause was tried by the court sitting without a jury.

Aldon Construction Co., Inc., referred to as Aldon, and Pioneer Plaza Inc., referred to as Pioneer Plaza, were engaged in subdividing two tracts of land in Norwalk and in work incident to the construction of a sewer system therein. They had possession and control of the tracts. The tracts were intersected by Pioneer Boulevard. Legal title to the tracts was held by Pioneer Plaza. Aldon was the general contractor of Pioneer Plaza. On August 18, 1949, Aldon contracted in writing with the County of Los Angeles to construct the sewers in streets in the tracts according to plans and profiles in the office of the county engineer, 'and to do all work incidental thereto.' The contract provided that Aldon would at all times give 'good and adequate warning of each and every dangerous condition caused by said work' and 'shall have such control of the ground reserved for the installation of such improvements, and the streets in which they are to be placed, as is necessary to allow him to carry out this agreement.' Aldon had possession and control of Pioneer Boulevard in the area where the sewer was being and was to be constructed and installed across the boulevard and at the point where the accident occurred.

M. Miller Company, referred to as Miller, was employed by Aldon to do the actual work of constructing and installing the sewers. Leo Raich was an employee of Miller, and was engaged in such work at the time he was injured.

The plans and profiles for the sewer system were prepared by defendants Engineering Service Corporation, referred to as Engineering, and Crescent Development Company, referred to as Crescent, for and at the request of Aldon and Pioneer Plaza. They were prepared for distribution to and use by the men engaged in the construction and installation of the sewer, which was known to all defendants. The plans provided for a sewer line to be constructed across Pioneer Boulevard, and for that purpose required the excavation of a ditch about 11 feet deep across the boulevard. At all times all defendants involved knew that the sewer was to be constructed across Pioneer Boulevard at some point between the two tracts and that the plans and profiles disclosed the point of crossing. For several days prior to the accident they all knew that construction of the sewer had commenced and that the plans and profiles had been delivered by Aldon and Pioneer Plaza to the men constructing the sewer, to be followed and used by them. There was a hidden, highly dangerous, casing-head gasoline line buried underground on the west side of Pioneer Boulevard, running from a point north of the north boundary to a point south of the south boundary of the subdivision. The gasoline line was not shown on any of the plans or profiles, nor was it marked by stakes or indicated in any way.

Prior to the accident, the employees of Miller excavating the sewer trench across Pioneer Boulevard, other than Leo Raich, but including the superintendent and the foreman thereof, were informed by Engineering and Crescent that there was a buried gasoline pipe line along the west side of Pioneer Boulevard in the course of and extending across the line of the planned sewer trench; and Miller had notice and knowledge of the danger of the pipe breaking or of the line being punctured if the trench digger was continued in use to excavate the trench as planned, but nevertheless Miller persisted in continuing the excavation across the west side of the highway.

None of the defendants gave Leo any notice or warning as to the existence, location, or danger of the line, and he had no notice or knowledge thereof until after the accident.

On September 25, 1949, Leo was operating a trench digger machine in excavating the sewer ditch across Pioneer Boulevard, the digger struck and punctured the line, and an explosion and fire resulted from which Leo received injuries which resulted in and caused his death. The foregoing facts were found by the trial court.

The court further found: The presence, location, and danger of the gasoline line was known, or in the exercise of ordinary are would have been known, to each defendant long prior to the accident. Each defendant knew, or in the exercise of ordinary care would have known, long prior to the accident that the work of constructing and installing the sewer line across Pioneer Boulevard was extremely and inherently dangerous if done without warning to all the employees engaged in such work of the existence, location, and danger of the pipe line. Aldon negligently failed to furnish the trench-digging crew, including Leo, with a safe place to work; and such negligence was a proximate cause of the accident. Aldon negligently failed to warn Leo of the line; and such negligence was a proximate cause of the accident. Aldon negligently failed to supply the trench-digging crew, including Leo, with true sewer plans and maps revealing the existence and location of the line; and such negligence was a proximate cause of the accident. The negligence of Aldon constituted separate and independent negligence and was in addition to the negligence of Miller. Notice of the presence in Pioneer Boulevard of the gasoline line was given to Miller, but not to Leo, prior to the accident. The negligence of Miller was a proximate cause of the accident. Whatever negligence Engineering and Crescent were guilty of was eliminated as a proximate cause of the death of Leo by the notice given to and the knowledge of Miller, not Leo, just prior to the accident that there was a buried gasoline line along the west side of Pioneer Boulevard; and such notice and knowledge on the part of Miller operated to constitute an efficient intervening cause as to Engineering and Crescent. Leo exercised ordinary care and was not contributively negligent. He did not assume the risk of the accident, and the accident was not unavoidable.

The court concluded: Leo was an invitee of Aldon as general contractor, and it owed him the duty to furnish him with a safe place to work and to supply him with true maps and plans or warn him of the existence, location, and danger of the gasoline line; and such duties were nondelegable. Such duties and the negligence of Miller constituted an efficient intervening cause of the accident and displaced the original negligence of Pioneer Plaza, Engineering, and Crescent in respect to maps. Judgment followed in favor of plaintiffs against Aldon for $51,421.81, and in favor of the other defendants against plaintiffs. Aldon appeals.

The assignments of error are: 1. The evidence is sufficient to support the findings. 2. The evidence is insufficient to support the implied finding that Aldon, as general contractor, was responsible for the work being done by Miller in Pioneer Boulevard. 3. There is no evidence to support the finding that Aldon had possession or control of Pioneer Boulevard at the point where the accident occurred. 4. There is no evidence to support the finding that Miller was employed by Aldon to construct the sewer. 5. There is no evidence to support the findings that the presence, location, or danger of the gasoline line was known, or in the exercise of ordinary care would have been known, to Aldon; or that Aldon knew, or in the exercise of ordinary care would have known, that construction of the sewer line was extremely or inherently dangerous if done without warning to the employees doing the...