Patterson v. Delta Lines, Inc.

VAN DYKE, P. J.

This is an appeal from a judgment entered upon the jury’s verdict in favor of the defendants in a wrongful death action.

The father of the minor, upon whose behalf this action was brought, was instantly killed when struck by a trailer attached to a truck being driven by the respondent Seibert in the course and scope of his employment by the corporate respondent. Respondent Seibert will hereinafter be referred to as the respondent.

The material facts stated in accordance with the rules on appeal follow: The accident occurred near Vacaville at a place on United States Highway Number 40 where the highway is divided into two lanes for southbound, and two lanes for northbound, traffic. The time was just before the break of dawn on September 4, 1952.

Shortly before the accident, the witness Roy Sterner passed the site and observed the deceased’s pickup and trailer parked on the shoulder approximately two feet to the right of the right edge of the main traveled portion of the highway used by southbound traffic. Deceased was “squatting down” on the left side of the parked vehicles in such a position that his body extended over the highway proper for a distance of about one foot. No lights were then burning on the pickup or trailer but there was a glass reflector a few feet to the rear thereof. In the absence of evidence to the contrary, it may be inferred that the lack of burning lights on decedent’s vehicles continued until the time of the accident.

(Jackson

v. Butler, 88 Cal.App.2d 608, 612 [199 P.2d 63].)

Respondent was driving a truck to which was attached two unloaded trailers. He was proceeding south in the right-hand lane at a speed of 40 miles per hour. Respondent did not see the decedent’s parked pickup and trailer until he was within approximately 60 feet of the rear thereof. He

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immediately swerved to the left and thereby, apparently, caused his rear trailer to “whip” to the right and strike decedent and his pickup. The force of the impact was such that respondent’s truck and trailers laid down skid marks for approximately 91 feet before going across a drainage ditch and into an adjacent field where they came to rest about 200 feet to the right of the highway. Hair and blood on the axle of the rear trailer indicated that decedent had been dragged by it to a point 60 feet south of his pickup where his body was found. After the accident two reflectors were found to the rear of decedent’s trailer, one of which was severely damaged and the other of which was then in such a position that it would have afforded no warning to vehicles approaching from the north. Respondent’s testimony was corroborated by the witness George Lyle who was following respondent’s truck and trailer at a distance of about 300 feet. He saw deceased’s pickup and trailer approximately at the same time as respondent did, although he was then 300 feet further distant therefrom. However, this does not necessarily mean that respondent was negligent in not observing the decedent’s pickup and trailer at the same distance. The witness George Lyle had the benefit of the illumination from-the lights on respondent’s equipment and he may also have had his attention attracted to the parked vehicles by respondent’s sudden swerve to the left. The witness testified that there were no lights burning on the decedent’s pickup or trailer and that prior to the accident he did not see decedent nor any reflectors.