Albania v. Kovacevich

BARNARD, P. J.

This action for personal injuries was consolidated with another action brought by the State Compensation Insurance Fund based upon its right of subrogation. The latter action presents no point on this appeal and no further reference to the parties in that action will be necessary. The court, sitting without a jury, found in favor of the plaintiffs and the defendants have appealed from the judgment which awarded varying amounts to the respective plaintiffs.

On October 27, 1937, at 6:15 p. m., the respondents, with forty or fifty other Filipinos, were riding along a road near Arvin, in Kern County, on a flat bed truck to which was attached a flat bed trailer, both vehicles belonging to their employer. These men were being taken from one place of employment to another. The truck bed was 11 feet long and the trailer bed 12 feet long, and each was 6 feet wide. There is some evidence that the truck and trailer were too crowded for all of the men to stand or sit without some of them having their legs hang over. This was an oiled road 21 feet 4 inches wide and there were no traffic lines thereon.

[927]

At the time in question this truck and trailer was proceeding north on its right side at a speed of from 18 to 20 miles per hour, the right rear tire of the trailer being over on the dirt shoulder on the right-hand side of the road. The respondents were all seated along the left side of this truck and trailer, some being seated with their legs hanging over the left edge of the beds, and others with their heels resting upon the edge of the left side of the trailer with their toes extending a few inches beyond the edge thereof.

At the same time a cab to which was attached a trailer, which were owned by the appellant Kovacevich and driven by his employee, the appellant Kohut, were proceeding south on this road at a speed of about 35 miles per hour. While so proceeding, Kohut attempted to pass a Ford automobile which was traveling in the same direction and, in doing so, he crossed the middle of the road and passed between the Ford and the truck and trailer upon which the respondents were riding. In making this attempt to pass between the Ford and this truck and trailer, the appellants’ cab and trailer struck the truck and trailer enough to scrape off a little paint at one point and also struck the legs and feet of the respondents, throwing several of them to the ground and causing the injuries in question. The appellant Kohut was asked: “Do you remember meeting a truck with some Filipinos in it.?,” to which he replied, “Sure I seen them coming home.” When asked about his passing the Ford car ahead of him he said: “Yes, I was going to go around it and then I seen I couldn’t pass and I turned my wheel and I heard something sidescrape.” He also testified that the cab he was driving “never had no brakes on it”.