Whalen v. Ruiz

• Decision Date: 20 February 1953
• Citation: 253 P.2d 457,40 Cal.2d 294
• Court: California Supreme Court
• Parties: WHALEN v. RUIZ et al. Sac. 6309.

Page 457

253 P.2d 457

40 Cal.2d 294

WHALEN v. RUIZ et al.

Sac. 6309.

Supreme Court of California, in Bank.

Feb. 20, 1953.

Mull & Pierce, A. M. Mull, Jr., Fred Pierce and Benjamin H. Brown, Sacramento, for appellant.

Devlin, Diepenbrock & Wulff and Horace B. Wulff, Sacramento, for respondents.

SPENCE, Justice.

This case presents the question of the liability, if any, of a railroad company for failure to make structural changes to meet changing traffic conditions on the highway deck of a bridge, which bridge it owned and operated and which highway deck was used as a public highway under the terms of an agreement with the public authorities.

Plaintiff sought damages for injuries sustained by him when an autobus, in which he and other farm laborers were riding, ran off the highway deck of the 'I' Street bridge over the Sacramento River at Sacramento and crashed to the ground below. Plaintiff alleged negligence against defendant railroad in the maintenance of the bridge and against defendant Al Ruiz in operation of the bus. Defendant Frank King was sued as owner of the bus and as employer of the driver Ruiz. The trial court found that the accident occurred as the 'proximate and contributing result' of negligent operation of the bus by the driver, as employee of defendant King, and negligent maintenance of the overhead structure of the bridge; that defendant railroad was the owner and operator of the bridge; that construction of the overhead or roadway portion of the bridge was controlled by an agreement dated September 6, 1910, executed by the railroad and the counties of Sacramento and Yolo, whereby the railroad granted to the counties the 'right, easement and privilege of using the overhead structure and approaches thereto for highway purposes and for the life of the bridge for railroad purposes'; that the agreement also provided that the railroad would 'repair, police and operate' the overhead structure and approaches thereto but that it 'did not include any obligation' on the part of the 'Railroad Company, or any other defendant herein, to do more than to maintain said structure according to the design and plan under which said bridge was originally built and that there was no obligation * * * to make structural changes to meet changing traffic conditions.' It was also found that the overhead structure and approaches thereto were part of the state highway system; that plaintiff was the employee of defendant King and engaged in the course of his employment when injured; and that both were subject to the Workmen's Compensation Act. Labor Code, § 3201 et seq. From such findings the court concluded that plaintiff's sole remedy against defendant King was within the jurisdiction of the Industrial Accident Commission, and that the court had no jurisdiction; and further, that plaintiff should take nothing by his complaint. Accordingly, judgment was entered in favor of all defendants. Plaintiff appeals from that portion of the judgment which decrees that he take nothing against the railroad.

The original construction of the bridge and overhead structure, as completed in 1912, is conceded to have been proper. However, appellant claims that with the increased use of motor vehicle travel, respondent was negligent in failing to maintain an adequate guardrail and curbing along the edge of the pavement on the overhead highway deck of the bridge. At the time of the accident, September 6, 1947, the roadway was equipped with an 8-inch curb and an iron railing, as provided in the original specifications. But this is not a case where the common-law principle of tort liability applies against respondent incident to a duty to maintain the highway deck of the bridge in a reasonably safe condition for use by the traveling public at its express or implied invitation. Comstock v. Great Northern Ry. Co., 157 Minn. 345, 196 N.W. 177; Calley v. Boston & Maine R. R., 93 N.H. 359, 42 A.2d 329, 159 A.L.R. 115. Rather the controlling factor is the mentioned agreement of 1910 fixing the rights and obligations of the parties thereto with regard to the bridge and overhead structure. We have concluded that the trial court properly construed the terms of said agreement as not imposing on respondent the obligation to make structural changes on the highway deck of the bridge to conform to changing traffic needs and modes of travel.

The 1910 agreement provided for respondent's construction of a double track bridge, with an overhead structure for highway purposes, connecting the counties of Yolo and Sacramento and extending over the Sacramento River. It recited that the new structure was to replace an existing bridge and overhead span which had been used in part for highway purposes and which were then out of repair. The cost of the new bridge was specified at $786,000, of which the estimate for the overhead deck and approaches thereto was $160,671. By the agreement respondent leased the overhead deck to Sacramento County for a period from the completion of the bridge until December 15, 1916, after which time said county was to (and did) receive a grant of the 'right, easement and privilege of using the overhead structure and approaches thereto' for the life of the bridge. For the portion of the bridge located in Yolo County, respondent granted an identical easement to that county, also continuing for the life of the bridge. The enjoyment of such easement and privilege of use was not to 'be interfered with' by respondent unless the county was in default in some term of the agreement. The agreement further provided that until December 15, 1916 (the termination of the lease to Sacramento County), respondent would 'keep in repair, operate and police at its own expense, the said bridge, including the floor of the overhead structure and the walks and railings thereon' but after said date, during the life of the bridge, it would 'keep in repair and operate all of said bridge, except the overhead structure and approaches thereto.' To this point of exception, the agreement continued: 'Whereas, it is recognized that after December 15th, 1916, the keeping in repair, operation and policing of the overhead structure, and approaches thereto, is properly chargeable to the said Counties of Sacramento and Yolo, and said Counties desire that the said 'Company' should agree to keep in repair and operate and police the same, as it is more convenient for the 'Company' to do so, Now, Therefore, the said 'Company' agrees to keep in repair, operate and police the said overhead structure, and approaches thereto, after December 15th, 1916, and during the life of said bridge for railroad purposes, and in consideration thereof' Sacramento County was to pay $1,500 per year and Yolo County, $500 per year; and 'if, for any reason, any payment * * * shall not be made * * * said Company * * * shall not be further obligated to keep in repair, or operate, or police said overhead structure, and the approaches thereto.'

It is plain from the agreement that the respective counties were granted an exclusive right of way or easement over the highway deck of the bridge. Admittedly the highway deck and approaches thereto were built according to the agreed plans and specifications, and they were then in a safe and proper condition for use of the existing traffic. Respondent, as owner of the servient tenement, did not become obligated by the mere grant of the easement to maintain the easement in a safe condition for the protection of those using it at the invitation of the easement owners, the two counties. 9 Cal.Jur. § 8, p. 954; Linton v. Miller & Lux, Inc., 83 Cal.App. 481, 484, 257 P. 105; see, also, Rest., Torts, § 349. The constructed curb and railing on the highway deck of the bridge formed a part of the subject matter of the easement, and it was not incumbent upon respondent to alter these structural features of the roadway or substitute others therefor to accommodate the changing needs of public travel according to future development, in the absence of an agreement devolving such duty upon respondent as owner of the servient tenement. 28 C.J.S., Easements, §§ 72, 94, pages 750, 773; Carson v. Jackson Land & Mining Co., 90 W.Va. 781, 111 S.E. 846, 847.

By the agreement of 1910 respondent had the obligation to 'keep in repair, operate and police' the overhead structure of the bridge. The agreement recognized that after the effective date of the easement to Sacramento County (December 15, 1916, upon termination of its lease arrangement with respondent), such obligation was properly chargeable to the counties as owners of the easement, Crease v. Jarrell, 65 Cal.App. 554, 559, 224 P. 762, but as a matter of convenience, respondent was made responsible for the performance of this work in return for an annual payment by the counties. This contractual undertaking must be examined as fixed by the contracting parties.

It does not appear that respondent's obligation to 'keep in repair, operate and police' the highway deck of the bridge contemplated the making of structural changes thereon. The word 'repair' in its ordinary sense relates to the preservation or property in its original condition, and does not carry the connotation that a new thing should be made or a distinct entity created. 76 C.J.S., p. 1169. As was said in Realty & Rebuilding Co. v. Rea, 184 Cal. 565, at page 576, 194 P. 1024, at page 1029: 'To repair means to mend an old thing, not to make a new thing; to restore to a sound state something which has become partially dilapidated, not to create something which has no existence.' See, also, Santa Cruz Rock Pavement Co. v. Broderick, 113 Cal. 628, 633, 45 P. 863. Appellant cites Bosqui v. City of San Bernardino, 2 Cal.2d 747, 43 P.2d 547, 552, where the railroad's duty to 'keep in repair' was likened to the 'duty to maintain'. But under the facts there involved, no broader definition was thereby contemplated. There the duty 'related to the structure itself', a...