186 P. 398 | Cal. Ct. App. | 1919
The defendants appeal from a judgment entered upon the verdict of a jury for five thousand dollars damages for the death of Harry B. Green, a traffic officer of the county of Alameda. His death occurred in December, 1914, while riding a motorcycle on a state highway, then in course of construction by the defendants under a contract *334 with the state. His widow received three thousand nine hundred dollars under the provisions of the Workmen's Compensation Act for herself and her minor children from the county of Alameda. The county, joined by the widow as administratrix, commenced this action, alleging the death was caused by the negligence of the contractors in placing and leaving on the highway numerous piles of loose gravel into one of which the motorcycle ran when its rider swerved to the right to prevent a collision with a horse-drawn vehicle approaching from the opposite direction. The accident occurred at night. It was also alleged that no lights or other means of warning were placed on or near the piles of gravel.
Under the contract with the state the concrete base of the roadway, eighteen feet wide, had been laid, and, by direction of the state department of engineering, the road had been opened to partial traffic. The contractors were to construct shoulders at the sides of the roadway, by filling in crushed stone, which was supplied but not hauled to the work by the department of engineering. Rains had softened the earth at the sides of the roadway and the state engineer had directed that the shoulders should not be constructed while the ground was in that condition. The contractors had received and hauled to the work the crushed rock and caused it to be dumped along the edges of and upon the concrete road surface, roughly in a continuous pile of varying width and depth on each side of the road. The depth of the piles of loose, crushed rock varied from four to seventeen inches and averaged about a foot. The edges of the two piles were irregular, and the clear space between them formed a sinuous way varying from a little less than twenty to a little less than fifteen feet wide.
There was evidence that after the accident the track of the motorcycle through the rock pile on the right-hand side of the road running from Hayward could be traced from a point where the roadway was about twelve feet wide for a distance of one hundred feet, more or less, to the place where the machine lay, some feet beyond where the rider was found. Near the place where the machine had skidded or slipped in the gravel the foot-plate and pedal from the left side of the motorcycle were found. Only one eye-witness of the accident was available, a boy aged twelve years at the time. His evidence was given at the trial two *335 years later. He saw the headlight of the motorcycle approaching him. A buggy without lights traveling in the opposite direction had passed him. He said the buggy pulled out a little to the right when it got opposite Mr. Green, who fell off at that time. After the accident unavailing search was made for the buggy and its driver. There were no lanterns, guards, or signs either on the gravel piles or at the entrance to the new work at the limits of Hayward, from which it was six-tenths of a mile to the point where the accident occurred. There was an electric street light at the Hayward end of the road. There was evidence that Green was riding at the rate of about twenty-five miles an hour, and that he had ridden over the road before the accident and after the gravel had been dumped.
The theory of the plaintiffs is that even though Green knew of the rock piles, in momentary forgetfulness of them when he was suddenly confronted with danger of collision with the buggy he swerved so far to the right that his machine ran into the loose rock and skidded so far to the side that the pedal and foot-rest were broken off by coming in contact with the broken rock, the machine finally throwing him and falling itself. Further, that if lights had been placed on the rock piles at intervals, he could not have forgotten their presence, and would not have swerved so far to the right. The appellants maintain that Green was guilty of contributory negligence; that there was no evidence of negligence on their part which proximately caused the death of Green; that the proximate cause of death was a collision between the motorcycle and another vehicle; that the court erred in matters of evidence and that the court erred in matters of instructions.
The theory of the appellants in regard to contributory negligence is that under the circumstances it was negligence as a matter of law for Green to ride over the road open for partial traffic only at the rate of speed at which he was going. [1] It is only where reasonable men can draw but a single conclusion from the facts that courts may determine the question of negligence of either party as a matter of law. The appellants rely on the rule that where a traveler uses a defective highway with knowledge of its defects, and in reckless disregard of them, he may *336
not recover for injuries he may sustain, even though those charged with the duty of maintaining the road or warning signs or lights have been negligent. (Brett v. Frank Co.,
The evidence shows that the state engineer ordered the work of constructing the shoulders of the sides of the road to be stopped. There is no evidence concerning whether this order was given before or after the rock was distributed on the road. Neither is there evidence that the rock was placed on the road at the time it was placed there under the direction of the state engineer. In the absence of evidence on the subject, it cannot be assumed that the mere placing of the rock on the road was negligent. The contract required the obstructions to be guarded or warning lights to be placed. Warning lights were furnished by the defendants, but they were not placed on the continuous rock pile. The defendants, of course, knew the road was open for traffic. The failure to place the lights on the road was negligence which is at least tacitly admitted by the argument on behalf of the appellants. [3] Notwithstanding the negligence of the defendants, unless it was the proximate cause of the injury, they could not be held liable. (Oakland Bank v.Murfey,
A witness for the defendants was asked certain questions as to what the contractors were required to do under the contract. On motion, the questions and answers were stricken out. It is contended that, in the absence of objection to the questions, the motion should have been denied. The defendants were not injured by the ruling. The contract was before the court; what it required was a question of law, not dependent upon the answers of the witness. [6] The same witness was asked concerning the use of lights on the adjoining section of roadway also under construction. The question was improper because no custom regarding the use of warning lights was shown, and a custom involving negligence could not excuse it.[7] An expert motorcycle rider was asked a hypothetical question concerning what such a rider should properly do on coming into sudden contact with a continuous pile of gravel such as that involved in this case. The objection was that it was not a question for expert *340 testimony, that it did not include all the facts, and that it invaded the province of the jury. The question was proper, but even though there were error in permitting it to be answered, it was not such as would warrant reversal, in that it does not appear that it resulted in a miscarriage of justice. (Const., art. VI, sec. 4 1/2.)
The exceptions to the instructions, even if well founded, are also within the rule requiring harmless error to be disregarded. The instructions as a whole were rather more favorable to the appellants than to the respondents, and they fully covered the law applicable to the case. It does not appear that any of the appellants' contentions in regard to the instructions are substantial.
The judgment is affirmed.
Langdon, P. J., and Nourse, J., concurred.