Petersen v. Lang Transportation Co.

BARNARD, P. J. This action was brought by the surviving wife and son of one I. J. Petersen to recover damages for his death. A jury returned a verdict in favor of the defendant and the plaintiffs have appealed from the judgment.

The general circumstances out of which the action arose are as follows: Between 8:30 and 9 o’clock on the night of December 23, 1936, a loaded truck and trailer, owned by the respondent, was being driven in a northerly direction down the Grapevine grade on U. S. Highway 99 when a series of accidents occurred near the bottom or north end of this grade. At the point in question the road sloped to the north and consisted of a three-lane paved highway, with shoulders which extended on either side to a white guard rail. The [464]truck and trailer, weighing 34,000 pounds each, were being driven by one Bridwell, an employee of respondent, on the easterly lane at a speed of about twelve miles an hour, both vehicles being fully equipped with lights which were burning.

As the truck was thus proceeding, a Plymouth automobile, containing a man and a woman, approached from the south and crashed into the rear end of the trailer. The driver of the truck heard the impact and immediately applied his air brakes, which failed to work. He stopped the truck by the use of other brakes, and, taking a flashlight, ran back to see what had happened. He discovered that the trailer had become detached from the truck and was standing on the east lane of the highway, about 200 feet to the rear of the truck. The crash had broken the connecting rod between the truck and trailer and had also broken the air brake connection between the two, the effect of which was to lock the brakes on the trailer and to make unworkable the air brake on the truck. The man and woman in the Plymouth car were killed, although the man lived for some little time. The Plymouth car was so badly damaged that people who came up were unable to open its doors in order to get the man out.

Just as the driver of the truck arrived at the wrecked Plymouth he saw another automobile approaching from the south and traveling in the same or easterly lane. He flagged this car with his flashlight and the driver thereof stopped. The driver of this car was Petersen, the deceased, who was accompanied by his wife, one of the appellants here. When they stopped, Bridwell told them 11 a couple of people ran into the back of my outfit” and asked them to get out and help. Mr. Petersen parked his car on the easterly shoulder, next to the guard rail, and he and his wife got out. Bridwell asked Mr. Petersen to use the flashlight to stop approaching ears while he went to get his’flares out. At Bridwell’s suggestion Petersen stood in the center of the east lane, some fifteen or eighteen feet south of the wrecked Plymouth, and waved the flashlight to warn cars approaching from the south. Shortly thereafter, another car, driven by one Painter, approached from the south on the east lane of traffic. As this car approached the scene of the previous wreck it swerved to the west into the center lane, swerved suddenly back into the east lane, where it struck and killed Petersen, and then swerved to the west again, where it struck and killed another man, and then