Robert Young, Herbert Young, Benjamin Young & Yim Kam Young, Minors, Honolulu Trust Co. v. Honolulu Constr., 2293.

• Decision Date: 21 January 1938
• Docket Number: No. 2293.,2293.
• Citation: 34 Haw. 426
• Parties: ROBERT YOUNG, HERBERT YOUNG, BENJAMIN YOUNG AND YIM KAM YOUNG, MINORS, HONOLULU TRUST COMPANY, LIMITED, A CORPORATION, ADMINISTRATOR OF THE ESTATE OF YOUNG MOW, DECEASED, AND FLORENCE YOUNG v. HONOLULU CONSTRUCTION AND DRAYING COMPANY, LIMITED, AN HAWAIIAN CORPORATION.
• Court: Hawaii Supreme Court

34 Haw. 426

ROBERT YOUNG, HERBERT YOUNG, BENJAMIN YOUNG AND YIM KAM YOUNG, MINORS, HONOLULU TRUST COMPANY, LIMITED, A CORPORATION, ADMINISTRATOR OF THE ESTATE OF YOUNG MOW, DECEASED, AND FLORENCE YOUNG

v.HONOLULU CONSTRUCTION AND DRAYING COMPANY, LIMITED, AN HAWAIIAN CORPORATION.

No. 2293.

Supreme Court of the Territory of Hawai‘i.

Argued October 27, 1937.

Decided January 21, 1938.

ERROR TO CIRCUIT COURT FIRST CIRCUIT. HON. A. M. CRISTY, JUDGE.

Syllabus by the Court

Where a municipal ordinance prescribes a duty for the protection and safety of others and there is a reasonable and logical connection between the failure to observe the requirements of the ordinance and the omission claimed to have caused the injury the neglect of duty imposed by the ordinance is evidence of negligence sufficient to require that the question of negligence be submitted to the jury.

If any possible hypothesis based on the evidence forbids the imputation of fault to the deceased, as a matter of law the question is one for the jury.

When one of two or more acts of negligence may be the proximate cause of an injury or where there is any doubt as to the proximate cause the question is to be left to the jury.

The right of action created by section 4052, R. L. 1935, is not one accorded generally for damages resulting from death by a wrongful act. It is a cause of action for the benefit of dependents and to sustain a recovery it must affirmatively appear that those invoking the statute are wholly or partially dependent upon the deceased for their support. In the instant case there was not sufficient evidence adduced to establish the fact of dependency.

The damages awarded must be compensatory and must be confined to compensation for pecuniary loss suffered by the dependents. In the case of loss of education the pecuniary loss suffered is the present value of the aggregate of the contributions that might have been reasonably expected for that purpose if the deceased had lived.

W. B. Lymer (also on the briefs) for plaintiffs.

J. G. Anthony ( Robertson & Castle on the briefs) for defendant.

COKE, C. J., BANKS AND PETERS, JJ.

OPINION OF THE COURT BY PETERS, J.

This is an action for death by a wrongful act of an adult son and brother accorded to dependents by section 4052, R. L. 1935. The text of the section is quoted in the margin.¹ The plaintiffs are the father, four minor brothers and a minor sister of the deceased.

There was a verdict for plaintiffs. Defendant prosecuted error.

The following are the consolidated assignments of error: 1. There was not sufficient evidence of defendant's negligence to submit the case to the jury; 2. The deceased was guilty of contributory negligence as a matter of law which bars plaintiffs' recovery in this case; 3. Plaintiffs failed to adduce more than a scintilla of evidence that they or any of them were dependent on the deceased within the meaning of section 4052, R. L. 1935, and 4. The verdict was excessive.

No objection was made by defendant in error to any of the assignments of error and in the absence of any objections, defects, if any, therein are deemed to have been waived.

1. In our opinion there was ample evidence of defendant's negligence to submit the case to the jury.

The accident, as a result of which the deceased met his death, was a rear–end collision in broad daylight on Dillingham Boulevard, an arterial urban highway; a Chevrolet truck driven by the deceased coming in collision with a bundle of steel rods projecting from the rear of a stationary truck owned by the defendant, then standing upon the right half of the boulevard, headed in the direction of traffic. The boulevard at the place of the accident is fifty–six feet three inches wide, lies in a generally northwest–southeast direction and to the southeast is a straightaway for a distance of about eight hundred feet.

The truck owned by the defendant and involved in the accident was not described further than it was a five–ton International and when loaded the bed or floor of the body of the truck was fifty inches above the ground. From the photographs taken immediately after the accident it would appear that it is of the larger, if not of the largest type of truck, employed for hauling and designed to carry as well as pull heavy loads. It has steel wheels with large balloon tires. Those in the rear are of the dual type. It has an open body with a driver's cab in front.

The Chevrolet truck that was involved in the accident was also left undescribed further than that it was old and in poor condition and the center of the windshield was about fifty–four to fifty–six inches off the ground. From the same photographs it apparently was a ton or ton and a half truck of the coupe type.

The truck of the defendant while traveling to the northwest on the right half of the boulevard had become disabled and was standing in a slightly oblique position with its right front and rear wheels fifteen feet eight inches and fifteen feet eleven inches respectively from the right–hand curb. No blame attached to the defendant or its agents or servants in charge of the stalled truck in stopping on the boulevard where it did and remaining there for some thirty minutes up to the time of the accident. It seems that the gears in the differential, through no fault of the defendant or those in charge of the truck, refused to operate, not alone depriving it of all means of self–propulsion but preventing its immediate removal and that all reasonable effort was made to secure a tractor and remove the truck from where it was stalled.

The truck was loaded with three–eighths and half inch reinforcing steel, made up in bundles of thirty–six and forty–foot lengths. Each bundle contained about twenty pieces. These bundles of reinforcing steel had been loaded on the truck in the following manner: On each side of the bed of the truck had been placed twelve–by–twelve timbers or beams slightly shorter than the shortest steel rods and projecting beyond the front and rear of the body of the truck. In front the beams protruded beyond the cab. The bundles of steel rods had been laid lengthwise along the top of the timbers, the longer underneath and both resting directly on the top of the timbers except where two four–by–fours, hereinafter referred to, intervened. Each twelve–by–twelve timber with its superimposed bundles of rods was held in place by chains and vertical wooden staves on the sides of the truck. The bundles of rods were distributed equally between two timbers, the supported mass of rods in each instance being about eight inches high. But whereas on the right–hand timber there were some eight or nine bundles of longer rods, on the left–hand timber there was but one bundle of the longer rods. All of the rods extended beyond the rear end of the timbers on which they lay, the longer rods below extending proportionately further than the shorter rods above. The shorter rods which extended beyond the rear end of the timbers were almost horizontal while the longer sagged considerably; the former at the ends being seventy inches off the ground, the latter fifty–four to fifty–six inches. The single bundle of longer rods which lay on the bottom of the heap of rods on the timber on the left–hand side of the truck extended beyond the rear of the bed or body of the truck about twelve feet and the rear end of the bundle was twenty–five feet eight inches from the right–hand street curb. Upon the trial a witness indicated with his hands the circumference of this bundle of rods but no actual measurements were preserved in the record. In the opinion of the trial judge on defendant's motion for a new trial this bundle was referred to by him as being three inches in diameter. Otherwise the truck was empty, except for what appears from the photographs to be two four–by–fours resting crosswise upon the twelve–by–twelve beams and caught between the timbers and the steel rods, one above the front end of the body of the truck and the other above the rear end. These four–by–fours apparently were employed to assist in keeping the rods in place.

The defendant's truck was in charge of a driver and a helper and they and a pedestrian were the only eyewitnesses to the accident.

The facts of the accident are not in dispute. The witnesses seem agreed that the deceased approached the rear of the stalled truck from the southeast in the Chevrolet truck, driving on his right–hand side; that the Chevrolet truck came into collision with the bundle of longer rods extending beyond the rear of the stalled truck on the left–hand side as the car was turning to the left; that the Chevrolet, despite the collision, continued for some distance along the left–hand side of the boulevard until it left the highway and came to rest in adjoining private property to the west. They seem further agreed that the top of the Chevrolet truck was sheared off by the collision and hung impaled upon the shorter rods on the left–hand side and that parts of the car were found scattered about the place of impact. The right–hand post of the windshield was found imbedded in the end of the twelve–by–twelve timber on the left–hand side of the stalled truck. The death of the deceased was instantaneous.

The municipal traffic code in effect at the time of the accident with certain exceptions with which we are not concerned required that whenever the load on any motor vehicle should extend more than four feet beyond the rear of the bed or body thereof there should be displayed at the end of such load in such position as to be clearly visible at all times from the rear of such vehicles a red flag not less than twelve inches both in length and width. Witnesses who had an opportunity of viewing the rear of the stalled truck immediately prior to the accident testified that they did not see a red flag at the rear end of the steel rods. On the other hand there was evidence to the effect that a red flag twelve–by–fifteen inches in size...