Holahan v. McGrew

California Court of Appeal Jan 28, 1931 No. Docket No. 4258.Published

Before: Thompson

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Holding. The court held that a bus company is liable as a joint tort-feasor when its driver's failure to exercise ordinary care in observing and avoiding a protruding canopy timber concurs with the contractor's negligent construction to cause injury. The driver's reliance on the presumption that others will obey the law does not excuse his own concurrent negligence.

Issues

Whether a bus company is liable for injuries caused by a collision with a negligently constructed canopy when the driver failed to observe the obstruction.
Whether a party's negligence per se in violating an ordinance relieves a concurrent tort-feasor of liability.
Whether the trial court erred in denying a motion for nonsuit regarding the bus company's liability.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The fact that one of the tort-feasors may be guilty of negligence per se, for violation of a statute or ordinance, does not relieve the other provided his acts or omissions, concurring with those of the first wrongdoer, proximately cause”

“One who relies upon the observance of a statute or ordinance by another may not complain of its violation while he himself is guilty of negligence which concurs directly in the cause of the injuries.”

“The evidence in this case is ample to support the implied finding that this appellant was guilty of concurrent negligence which proximately caused the injuries sustained by Mrs. Holahan.”

MR. JUSTICE THOMPSON (R. L.) Delivered the Opinion of the Court.

CThis is a separate appeal on

[445]

the part of West Side Transit Company from a joint and several judgment for damages for personal injuries sustained by Mrs. Holahan which were caused by the dislodging of a timber used as a part of a canopy which was constructed over a sidewalk for the protection of pedestrians.

The facts of the case are related in greater detail in the opinion this day filed

(ante,

p. 430 [295 Pac. 1054]), in the same case which determines the appeal from this judgment on the part of the other defendants.

The defendant Commonwealth Building & Loan Association of Long Beach owns two lots at the corner of Pine Avenue and Broadway, in the city of Long Beach, upon which it was engaged in constructing a building. The defendant C. T. McGrew & Sons had the contract for this structure. Pursuant to a city ordinance a canopy had been erected, for the protection of pedestrians, over the sidewalk in front of the building. The canopy did not conform to the specifications required by the ordinance. Several cross-timbers extended beyond the curbing, over the street, a distance of from three inches to two feet. At the point where this canopy was maintained during the construction of the building busses were accustomed to stop to receive and discharge passengers. At 3 o’clock on the afternoon of January 7, 1927, the plaintiff Frances Holahan was waiting beneath this canopy for a bus. This appellant, West Side Transit Company, was engaged in operating a system of autobusses for the purpose of transporting passengers in that vicinity. Virgil Abbott was the driver of one of these buses. At the time mentioned he turned the bus in close to the curbing at this canopy to stop for passengers. This appears to have been his first trip since the completion of the canopy. He claims that he did not observe any of the timbers which extended beyond the curbing over the street. Opposite the very point where he was accustomed to stop, a cross-timber, which was nailed to the upright posts about eight feet above the street, protruded beyond the curbing a distance of eight inches. The top of the bus struck this timber, knocking it from the posts to which it was nailed. This dislodged other planks, one of which struck Mrs. Holahan, breaking her shoulder and otherwise injuring her. Suit for damages was brought against all the defendants jointly. The cause was tried with a jury. A joint and

Holahan v. McGrew

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