Wong v. McCandless
| Decision Date | 15 January 1931 |
| Docket Number | No. 1971.,1971. |
| Citation | 31 Haw. 750 |
| Parties | Y. S. WONG v. L. L. MCCANDLESS. |
| Court | Hawaii Supreme Court |
OPINION TEXT STARTS HERE
EXCEPTIONS FROM CIRCUIT COURT FIRST CIRCUIT. HON. A. M. CRISTY, JUDGE.
Syllabus by the Court
It is the duty of an independent contractor who, in the prosecution of his work under a contract with municipal authorities for the construction of public improvements, makes an excavation in a public street which (unless properly guarded) is dangerous to travel, to take reasonable precaution by the use of barriers, railings and/or lights or other suitable means to protect persons lawfully using the highway from injury on account of such excavation.
When an automobile which is being operated on a public street at night is driven into an insufficiently guarded excavation and the driver of the automobile is guilty of negligence which proximately contributes to the accident it cannot be said, as a matter of law, in an action brought by a passenger who received injuries on account of the accident and who was in no way chargeable with the negligence of the driver, that the driver's negligence and not that of the person who was responsible for the unguarded condition of the excavation is the proximate cause of the plaintiff's injuries.
The negligence of the owner and operator of an automobile is not imputable to a guest or gratuitous passenger who is not at the time jointly engaged with the owner in an enterprise wherein each has the right to direct the operation of the machine.
It cannot be said under all circumstances that it is negligence, as a matter of law, for one riding as a passenger with the driver of an automobile to fail to observe that the driver is under the influence of liquor. Held, in the instant case, that under the evidence it was a question of fact for the determination of the trial court sitting without a jury.
F. Patterson and W. T. O'Reilly for plaintiff.
Kemp & Stainback and A. J. Buscheck for defendant.
This is an action for damages resulting from an automobile accident. The circuit court, trying the case without a jury, decided that the plaintiff was entitled to recover of the defendant the sum of $4000 and entered judgment accordingly. The case is here on exceptions.
The following facts were established by the undisputed evidence: The defendant was awarded a contract by the sewer and water commission of Honolulu for the construction of certain public works and improvements known as “Kapalama Interceptor.” In doing the work involved in the contract he made an excavation at the intersection of Hart and McNeill streets. This excavation was, roughly, in the shape of an L, or, more accurately, of a key, and was, on its longer side, about twenty–eight feet in length. The wider or flange portion of it was in the intersection of the streets and was about thirteen feet in width and about thirteen feet in depth. The narrower or stem portion extended along Hart street in the direction of Waikiki and was about seven feet in width. Hart street runs in an Ewa–Waikiki direction and McNeill street in a makaimauka direction. They are both public thoroughfares in the city of Honolulu. On the night of May 2, 1929, between seven–thirty and eight o'clock, an automobile which was owned and operated by one La Barr, was traveling in a Waikiki direction along Hart street. The plaintiff was riding in the car with La Barr. The car ran into the excavation at its Ewa end and the plaintiff was injured. There was a lantern, giving a red light, fastened to a wooden pole a few feet above the ground near the makai side of the wider portion of the excavation. There was also in the neighborhood an electric street light attached to an ordinary telephone pole about twenty–five feet high. This light was located on the mauka side of Hart street and opposite the Ewa side of McNeill street and was comparable to a fifty or sixty–watt house light.
There was evidence tending to show that there was a single wooden rail of some sort along the Ewa end of the excavation. The negligence complained of is that the excavation was left without sufficient lights or signals to adequately define its boundaries and warn passengers traveling along the highway at night of its precise location. The defenses relied on are (1) that the defendant was not guilty of negligence; (2) that the defendant's negligence, if any, was not the proximate cause of the plaintiff's injuries; (3) that the plaintiff himself was guilty of contributory negligence, and (4) that the driver of the car was guilty of negligence and that his negligence is imputable to the plaintiff.
The circuit court decided all the issues against the defendant. The first question presented by the exceptions is whether it was error under the evidence for the trial court to decide that the defendant was guilty of the negligence alleged. The defendant's obligation is clearly defined in his contract with the sewer and water commission in the following portion of one of its paragraphs: “The contractor shall, during the progress of the work, use all proper precautions and methods of procedure and construction by means of good and sufficient barriers, guards, temporary bridges, notices, lights, warnings and/or other safeguards for the prevention of accidents, and for the protection of property, and from twilight until sunrise he shall keep suitable lights burning wherever the public shall have access near or at the work in progress to define the line of safe passage.” This contractual obligation is nothing more than the duty imposed upon the defendant by law. He does not deny the obligation but claims that it was fully discharged . The measure of his duty is of course the same as that of a municipality charged with the responsibility of keeping its streets in a safe condition for public traffic. In 7 McQuillin, Mun. Corp., § 2984, the rule, as to municipal corporations, is stated as follows:
La Barr, the owner and operator of the car, testified that as he approached McNeill street he was driving on the right side of Hart street going in a Waikiki direction; that his speed was about twenty miles an hour and that it was a dark night; that the only light he saw was a red lantern on his right and that as he entered the intersection of Hart and McNeill streets he veered to the left and ran into the excavation. The plaintiff's testimony in this respect corroborated that of La Barr.
We cannot say, as a matter of law, that the warnings of danger which the evidence showed were placed at the excavation by the defendant were a compliance with that degree of care which he was obliged to exercise. It is quite conceivable that there would be a difference of opinion on this subject among reasonable minds. This being so, whether the negligence complained of was committed was a question of fact for the determination of the trial court sitting in the place of a jury. The consensus of judicial opinion is thus stated in Kearns v. Mobile L. & R. R. Co., 196 Ala. 99, 101: “It must of course be conceded that, as a general rule, the sufficiency of signals or barriers to give reasonable warning of or security against existing danger, especially with respect to their character, number and arrangement, is a question of fact for the jury.”
The trial court having found against the defendant on this issue its conclusion cannot be disturbed.
The next question presented by the exceptions is whether, conceding the defendant's negligence, it was the proximate cause of the accident which resulted in the plaintiff's injuries. It is contended by the defendant that this question must be answered in the negative for the reason that La Barr, at the time of the accident, was guilty of negligence in operating his car, for which negligence the defendant was not responsible, and therefore La Barr's negligence, and not that of the defendant, was the proximate cause.
It appears from the record that La Barr also brought an action against the defendant for injuries received by him in the same accident which caused plaintiff's injuries. The two cases, by stipulation, were tried together. The circuit court decided that La Barr was not entitled to recover for the reason that at the time of the accident he was in a somewhat inebriated condition and therefore did not exercise the care for his own safety required of him by law. In other words, the court found that La Barr was guilty of negligence which proximately contributed to the accident.
There is apparently a lack of entire harmony among judicial writers on the question arising out of this situation. In 29 C. J., 694, the author of the text has this to say: ...
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