Gay v. Cadwallader-Gibson Co., Inc.

WOOD, Acting P. J.

Charles C. Gay was killed May 20, 1937, in an accident in which he was struck by a motor vehicle driven by defendant Lye, who was operating the vehicle in the course of his employment by Cadwallader-Gibson Co., Inc., hereinafter referred to as the lumber company. The action was commenced by the heirs at law of decedent to recover damages suffered because of his death. Defendants appeal from a judgment in favor of plaintiffs.

Decedent was at the time of his death and had been for a period of approximately twelve years in the employ of Pacific Portland Cement Company, hereinafter referred to as the cement company, and of its predecessor, Standard Gypsum Company. The cement company and the lumber company were lessees of adjoining parcels of real property from Craig Shipbuilding Company. The cement company’s lease was dated April 11, 1925, and contained the provision that the lessors reserve the right, “To maintain and use the switch track now crossing the southwesterly portion of said demised premises, the approximate location of which is shown

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on said annexed map in red and black, such use, if said Lessee so desires, to be a joint use, each interfering with the use of the other as little as reasonably practicable.” The switch track and the pathway hereinafter referred to were on a small parcel of land, a trifle less than one acre immediately adjoining the premises on which was erected a plant operated by the cement company. In 1927 the lumber company executed a lease with the Craig company and commenced to use the parcel of land just referred to jointly with the cement company. In 1934 an oral agreement was made by and between the lumber company and the Craig company by which the lumber company agreed to pay taxes on the parcel of land and would have the control of it. This oral agreement was not communicated to the cement company.

There is no discussion in the briefs concerning the rule of law that the purchaser or lessee of land is bound to take notice of all easements and servitudes which are apparent on inspection of the property. We will therefore take up the contention of plaintiffs that the findings are supported by the evidence and that they in turn support the judgment. The trial court found that it was necessary for decedent to use and he was making use of and traversing a well-defined pathway which ran relatively parallel with and in close proximity to the property and buildings in the possession and under the control of his employer; that the pathway was located on property in the possession and control of the lumber company; that the pathway in question had been in constant and continuous use by the cement company and its predecessor and their employees for a long time preceding the accident; that defendant Lye negligently operated a vehicle, known as a lumber carrier, resulting in the death of decedent. The court further found: “That said defendant, Valentine Lye, at the time of and for a long time prior to the date of said accident, had knowledge of and knew of the existence of and the location of said pathway, and knew and had knowledge of the use being made thereof by the employees of said Pacific Portland Cement Company, and by said deceased, Charles Calloway Gay, and at all times had knowledge of and knew that said employees of said Pacific Portland Cement Company were constantly and continuously making use of and were traversing said well-defined pathway, and at all times knew that the various employees of said Pacific Portland Cement Company, includ