Breithaupt v. Jahn & Bressi Construction Co.

CRAIL, J. This is an action for damages for personal injuries. At the time plaintiff was injured she was walking on a road known as the Angeles Forest Road in the county of Los Angeles. On the day of the accident defendant was engaged and for six months prior thereto had been engaged in road construction work on what is known as Angeles Crest [183]Road, which latter road, at the point where the accident happened, is about 200 feet higher vertically and 300 feet distant on the line of the slope.

At the time of the accident the defendant was making a fill by dumping dirt and rocks from trucks and then leveling the material with a bull-dozer. Rocks rolled down the slope when dumped from the trucks or when dislodged by the bull-dozer. No warning was given on the lower road in any manner to indicate that work was being done on the Crest road.

Plaintiff and two other women had walked up the lower road and after resting awhile were walking back down the lower road when suddenly and unexpectedly rocks began rolling down the slope towards them. A large rock struck the plaintiff in the head and shoulder, causing the severe injuries complained of.

The case was tried by a judge without a jury and from a judgment in favor of the plaintiff the defendant has taken this appeal.

Appellant’s first contention is that the evidence fails to show any negligence on the part of the defendant. There was evidence that the lower road was generally used by the public, and that the defendant had full knowledge of the general use which was made of it. No construction work was being done upon the lower road and there was nothing in the appearance of that road to indicate to persons using it that any danger existed. There was evidence that when the work was first started a chain was put across the road about 1600 feet from and below the place of the accident, and that after about two weeks this chain was let down and remained down thereafter. The only sign placed by the defendant on or near the lower road was the “Danger, Blasting” sign which was about 1600 feet below the place of the accident. The evidence further shows that when blasting was being done the defendants had flagmen on the lower road protecting the public against danger. The work which the defendant was doing on the day of the accident created similar dangers by casting rocks onto the lower road but there were no flagmen on that day.

All of this evidence tends to support plaintiff’s contention that the defendant by some mistake or omission failed on