Severin v. Cox

MUSSELL, J. Plaintiff, a young college student, while riding his motorcycle in a northerly direction on Orange Avenue in the city of Fresno, struck a barricade erected along an open trench across the east side of the avenue. He filed the present action for damages against the defendant, a plumbing contractor, who excavated the trench to put in a sewer connection. A jury awarded plaintiff damages in the sum of $6,000.

Appellant’s argument is devoted entirely to the contention that, under the evidence, plaintiff was guilty of contributory negligence as a matter of law, and that the judgment should therefore be reversed.

On the date of the accident, February 19, 1949, defendant, in connecting a dwelling house on the east side of Orange Avenue with the city sewer system, dug a trench from the property westward to the center of the avenue. The trench [333]was approximately 20 inches wide and 4 feet deep, and at the time of the accident (shortly after sundown), the dirt which had been removed was piled on the north and south sides of the excavation. At about 4 p. m., a workman employed by the defendant erected a barrier of boards along the trench. He was ordered by the job superintendent to place four bomb-shaped kerosene flares near the trench, one on each side thereof at the west end, and one on each side halfway between the center of the street and the curb line. The workman, however, placed two of the flares on the curb line and two at the end of the ditch in the' center of the street. He did not place any light in the normal northbound traffic lane or halfway between the center of the street and the curb line, as directed. A photograph (defendant’s Exhibit A) shows that a crosswalk for pedestrian traffic had evidently been constructed across the trench east of the two lights on the west end of the trench, indicating that the board barricade may not have closed the ditch to crosswalk traffic at the time of the accident, and that the dirt was piled so as to indicate a passageway north and south across the excavation. The distance between the two flares at the curb line and those in the center of the avenue was approximately 12 feet, and plaintiff traveling north at a speed of 35 to 40 miles per hour saw the light in the center of the avenue but did not notice those on the curb line. He testified that when he saw the light in .the center of the street he stayed on his own side of the road, and when asked why he did so instead of turning to the left stated: “Well,-1 figured it could just be to the left as easily as to the right. I was just approaching it”; that he did not observe any barricade to the east of the center of the street; that he had his motorcycle light on high beam and could see “quite a ways”; that he assumed that his side of the road was clear; that he struck the barrier and was thrown from his motorcycle. In this connection it may be observed that there were no signs of any kind placed south of the trench indicating that the northbound traffic lane was closed to vehicular traffic.