Wilson v. Fredericksen

DRAPEAU, J. October 2, 1947, a modern four-lane highway was being constructed on State Highway 101 in San Luis Obispo County. At a point a mile or two north of the city of San Luis Obispo, the construction contractors had placed barricades across the old pavement and provided a detour or by-pass in the dirt alongside the old pavement. Kerosene flares were closely placed along the barricades across the pavement.

The detour was about 500 feet in length, and from 32 feet minimum to 50 feet maximum in width. Kerosene flares were also placed at short intervals along each side of the detour. The detour was sprinkled with water several times a day by the contractors.

About 6:30 in the evening, the plaintiff, driving a Chevrolet pickup truck was going south toward San Luis Obispo. At that time vehicles using the highway had their lights on, and the kerosene flares were burning. Reaching the detour, the plaintiff drove off the pavement and onto the dirt roadway between the lighted flares.

At approximately the same time, the defendant Jones was going north, driving a Willys sedan, hauling a house trailer. There is no evidence of undue speed of any of the parties. Jones was following a big boxcar truck, equipped with 12 or 14 wheels. As the truck went through the detour, it caused a thick, whirling cloud of dust to rise. The dust was so pervading that it obscured the vision of the plaintiff. He first stuck his head and shoulders out of the pickup the better to see where he was going, and, then, to avoid the dust, he elevated the glass window of his pickup on the driver’s side. About 100 feet after the plaintiff passed the big truck, his pickup, the Willys, and the house trailer collided.

The pickup was damaged extensively, and the plaintiff suffered severe personal injuries. His left arm was fractured at the elbow, and it is doubtful if he will ever have much use of the arm any more.

[363]The plaintiff, and his wife, who was riding with him, testified about the dust; also that he was driving as close as possible to the flares on his right side of the detour, and that the defendant Jones ran into him.

The defendant Jones, and his wife, who was riding with him, testified that their car was traveling close to the flares on their right-hand side of the detour; that there was no dust; and that the plaintiff ran into their car and trailer.