Savoia v. Moorehead

YORK, P. J.

The instant action is one for damages for wrongful death brought by the father of decedent, a minor. In his complaint, plaintiff named as defendants Dan H. Moorehead and Jane Moorehead, individually and as copartners doing business as Dan Moorehead Construction Company, their employee, James Parrish; the Airline Bus Company, its employees, and several fictitious defendants. Plaintiff alleged that while his deceased minor son was upon Highway 33, near Avenal, Fresno County, on July 3, 1944, he was struck by a truck negligently operated by an agent of defendants' Moore-head so as to cause him to be thrown to the pavement and that he was then struck and run over by a bus negligently operated by an agent of the Airline Bus Company; that such alleged acts of negligence proximately caused the death of said minor, Anthony Savoia, to the damage of plaintiff.

At the start of the trial, plaintiff dismissed the action against all defendants except Dan H. Moorehead, Jane Moorehead and James Parrish, and the jury rendered its verdict in their favor. Thereafter, upon motion of plaintiff, the court granted a new trial. This appeal is prosecuted from the order granting said motion.

A statement of facts which respondent agrees is “correct” appears in appellants’ opening brief to the following effect:

“The Maeeo-Robinson Construction Company, employer of respondent’s decedent, was constructing a pipe line running in a general southerly direction along Highway 33. The point at which this pipe line began with reference to this

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accident was approximately one mile north of the point of impact. The pipe line was being laid on the west side„of the highway approximately eighteen feet west of the west shoulder running along the highway. This shoulder was an oiled dirt shoulder approximately five to six feet wide. To lay the pipe line it was necessary that an excavation be dug, the pipe fitted, sealed with tar, cemented, and lowered into the excavation. . . .

“From the northern beginning of the excavation to the point of impact, a distance of approximately one mile, certain ‘Men at Work’ signs were located at intervals of several ■hundred feet. These signs were placed approximately two to three feet west of the west edge of the highway and were themselves about three feet in width. At a point opposite the point of impact and at the west side of the highway there was parked a truck having an ordinary tar pot connected to the rear end in ‘trailer fashion.’ Both the truck and the ‘trailer’ were situated just west of the west shoulder of the highway. The respondent’s decedent, who had been on the job for one or two days, and who was about sixteen years old, was engaged in drawing hot tar from the tar pot in buckets and carrying the tar over to the excavation for use by other employees of the construction company. At or about the time the accident occurred, the decedent was drawing a bucket of hot tar and either the bucket or the tar pot itself burst into flames. The decedent then dropped the bucket and ran in an easterly direction onto the highway. He reached a point approximately midway across the highway when he suddenly reversed his direction from east to west and started back toward the west edge of the highway. When he had reached a point approximately two feet east of the west edge of the pavement he was struck by appellants’ truck.