Ouchida v. Potter

OGDEN, J. pro tem. This appeal is based solely upon

asserted prejudicial error in the giving of two instructions to the jury at the request of appellant’s codefendants. The record on appeal, having been prepared pursuant to the provisions of rule 4b of the Rules on Appeal, consists of the clerk’s transcript,' the reporter’s transcript of the testimony of one witness, two photographs of the scene of the accident and the two instructions complained of. We have not been favored with any briefs except the opening brief of appellant.

[199]The action was brought to recover damages for the death of one and personal injuries to another of the occupants of an automobile involved in a collision with a large tractor and semitrailer operated by the appellant. The accident occurred in the evening “as it was getting to be dusk” on State Highway 101, approximately 8 miles north of the city of Salinas. Plaintiffs’ automobile was traveling in a northerly and appellant’s tractor and semitrailer in a southerly direction. The two vehicles came into collision at a point close to where a “pick-up” truck was parked, facing south and partially on the paved portion of the westerly side of the highway. Both the appellant and the operator of the parked truck and his employer were joined as defendants, the complaint alleging that the accident was caused by the joint and concurrent negligence of the operators of both vehicles. A complaint in intervention was filed against all the parties to the original action to recover the property damage to the freight contents of the semitrailer. The verdict of the jury was against appellant and in favor of his codefendants, the operator of the parked truck and his employer.

The testimony of the operator of the parked truck, one Seaton, which is the only testimony before us, shows the following. In the course of his duties as foreman and safety man employed by the construction firm engaged in doing highway construction work he was placing lighted flares at points along the highway made dangerous to traffic by reason of the new construction. At the point where the accident occurred, there extended alongside and parallel to the westerly portion of the highway for approximately 225 feet, a mound of earth, or berm, varying in height from 1 to 2 feet. On the far side of this berm was the excavation for a new roadbed, 5 feet deep and 30 feet wide. For the purpose of placing flares to warn traffic of this hazard, Seaton, who was proceeding in a southerly direction, parked his truck as close as possible to the berm. The proximity of the berm to the highway did not permit his truck to clear the paved portion and the left side of his truck extended 2 feet inside the edge of the pavement. The highway, at this point, consisted of two paved lanes of 10 feet each in width and 6 feet of asphalt shoulder on each side. His truck was painted yellow and the headlights and taillight were lighted. He placed two lighted flares, one about 30 feet and the other between 10 and 12 feet to the north and rear of his truck. After returning