Dept. of Pub. Wks. v. Indus. Acc. Com.

This is a petition to review an award of damages which was rendered against the Highway Division of the Department of Public Works of the State of California pursuant to the Workmen's Compensation, Insurance and Safety Act, on account of the death of a laborer which occurred as the result of an automobile casualty.

In January, 1932, Edward E. Dreyer was employed by the Department of Public Works of the State of California as a laborer to assist in clearing the highway of snow and debris in the vicinity of San Bernardino. Dreyer lived at Crestline. He was living separate and apart from the respondent Ruth Dreyer, who is his widow. She was partially *Page 129 dependent upon him for support pursuant to an agreement between them for a settlement of property rights. The laborers were required to report for work each morning at 7 o'clock at the Etiwanda tollhouse on the mountain highway about seven miles from San Bernardino. The employer's trucks left San Bernardino for the tollhouse at 6:30 A.M. Workmen were permitted to ride in these trucks free of charge. They were not required to travel this way. Several of them drove their own cars to the tollhouse, where some of the private machines were parked, and some laborers proceeded to the location of their employment in the trucks. Others were accustomed to drive their own automobiles on from the tollhouse to the place of their employment. This was done with the knowledge and consent of the foreman. Mr. Davidson, foreman in charge of the work, testified in that regard: "Q. Some of them (the workmen) took their own cars all the way up (the highway, to the place where they were engaged in working)? A. Yes. Q. Without any objection from the foreman or instructions to the contrary? A. I never made any objection."

On the morning of January 23, 1932, Dreyer drove his own machine from Crestline to the tollhouse, where he reported for work at 7 o'clock. Roy Clark, who was an assistant foreman in charge of the highway work that day, directed Dreyer to assist him in transferring to the trucks the hand tools which were stored at the tollhouse. The workmen were engaged in clearing the highway of snow and debris at a point several miles beyond the tollhouse. It was a cold snowy morning. The workmen were permitted to ride in the trucks free of charge, from the tollhouse to the place of employment. They were not instructed or required to do so. It was optional with them, whether they rode in the trucks, or drove their own machines. Mr. Clark testified in that regard: "They (the workmen) have been driving in their own car; if a man wants to drive in their own car, why (they are authorized) to go ahead; they were not compelled to ride in the trucks."

After the tools were loaded, there was but one open truck remaining in which Dreyer and the foreman could ride. Dreyer said to Clark that it was cold and windy that morning to ride in an open truck and he was willing to drive *Page 130 his own car on to the point where they were to clear the highway. The foreman volunteered to ride with him. He offered to buy fifty cents worth of gasoline for the trip. Dreyer, however, refused to permit this to be done. They started upgrade from the tollhouse a few minutes after 7 o'clock. The day's work had begun. Dreyer was then subject to the orders of the foreman with whom he was riding. About twenty-five minutes later, as their machine rounded a curve, the morning sun struck the windshield, and apparently blinded the driver. The machine ran over the grade, rolling into a gulch below. Dreyer was killed. Clark was seriously injured.