State Compensation Insurance Fund v. Dalton

STURTEVANT, J.

In an action to recover damages for wrongful death the plaintiff recovered a judgment against the defendant John J. Dalton and the latter has appealed. Other defendants were named in the complaint but they were not served and no judgment was rendered against them.

Prior to the 27th day of February, 1933, the county of Alameda was doing certain roadwork on a road leading from the eastern side of Berkeley toward the top of Grizzly Peak. It had many men employed and it was operating a number of trucks. John J. Dalton was the owner of a certain Bethlehem truck and he was employed by Mr. Wilhelm, the engineer

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for Alameda County, to take his truck and assist in doing the work. His compensation was fixed at $1.50 an hour for himself and truck. A Mr. Pixley was the foreman in charge of the work. Dalton was directed to take the truck and report on the job to Mr. Pixley, who would give him his instructions. On Sunday, the 26th day of February, 1933, Dalton drove the truck to the job and parked it. The next morning he commenced the performance of the work for which he had been employed. The men had established a camp at the junction of Grizzly Peak and Fish Ranch roads which is some distance down the side of the mountain, although the actual labor was being performed at a point up toward the top of the mountain. Acting under the direction of the foreman the men boarded the trucks in the morning and were hauled to the place where the actual labor was to be performed. At the end of the day the men were directed to board the trucks and be transported down the mountain to the camp. Some of the trucks.hauled men and others hauled tools. Their time ran from leaving camp until returning there. At about 4 P. M. on the 27th day of.February, 1933, twenty-five or thirty men, including Jesse Bradley, one of the employees, boarded the truck being driven by the defendant Dalton. After they had started down the mountain in a very few minutes it was found that the speed of the truck could not be controlled by the driver. As some of the witnesses stated, the truck ran wild and so continued down the grade. It passed the camp and continued still farther down until it came to an oil station where the road forked. At first the driver attempted to turn to the right, but at once shifted and turned to the left on the branch that was slightly uphill. After passing the gas station a short distance it came to a stop. After leaving the top of the mountain some of the men jumped off or were thrown off in different places. Jesse Bradley remained on the truck, but, according to the evidence, he was at different places on the truck as it speeded down the mountain. The point where the roads branched is termed the intersection of Fish Ranch road and the Tunnel road. On reaching the intersection the truck had commenced to slow down. At that time Jesse Bradley was standing on the right running board. About one hundred feet back from the place where the truck came to a standstill Bradley either jumped off or was thrown off. He was seen to light on his feet but he fell backward and the rear wheel.