Hoelzle v. Fresno County

BARNARD, P. J. This is an appeal from a judgment in favor of the defendant in an action to recover damages for the death of plaintiff’s husband William W. Hoelzle, and for damages to his automobile.

The plaintiff’s husband met his death by drowning, his body having been found in an irrigation canal several miles southwest of Firebaugh in Fresno County. In the area involved there are three canals parallel with each other, running in a northerly and southerly direction. A small country road with dirt or gravel surface runs east and west, crossing each of these canals. This was an old road, and it and the bridge here involved had been deeded to the county on April 24,1953. The most easterly of these canals is called the “East” canal. The “Center” canal is one-quarter of a mile west of the “East” canal, and 200 yards west of the “Center” canal is the “Delta-Mendota Canal,” a Federal project. The body of plaintiff’s husband was found in the “Center” canal.

[480]On April 1, 1956, the plaintiff and her husband and a Mr. and Mrs. Thompson were fishing together in the “ Bast ” canal. The women had gone there earlier in the Thompson car, and the men arrived about noon in the 1953 Studebaker owned by plaintiff’s husband. About 1 p.m. the two men left the women and drove about a quarter of a mile south along the same canal to fish at a new location. About 3 p.m. the women observed that the men and their car had disappeared from that location. The women made an unsuccessful search for the men during that afternoon, and later the disappearance of the men was reported to the authorities. The bodies of the men were found on April 3 in the ear of plaintiff’s husband which was submerged in the “Center” canal. The car was raised from the canal by its front end and the bodies of both men were in the back seat when the car emerged from the water.

The complaint in this action alleged that the death of plaintiff’s husband was proximately caused by the dangerous and defective condition of this public road and bridge, and that the defendant and its agents had failed to remedy the same within a reasonable time after acquiring knowledge of the dangerous and defective conditions. The defendant’s answer “denies generally and specifically, each and every, all and singular the allegations of said complaint.” As a further and separate answer and affirmative defense to the complaint the answer alleged “That William W. Hoelzle did not exercise ordinary care, caution or prudence in the premises to avoid the happening of said accident and the said accident and death of said William W. Hoelzle were directly and proximately caused and contributed to by the negligence in the premises of said William W. Hoelzle.” The action went to trial with a jury, and at the close of the plaintiff’s case the plaintiff objected to the introduction of any evidence by the defendant, and moved for judgment on the pleadings, on the ground that defendant’s answer failed to raise any issue or state a defense. The court overruled this objection and denied this motion, and the trial proceeded. The jury returned a verdict in favor of the defendant, a motion for a new trial was denied, and the plaintiff has appealed from the judgment.