Milloway v. Griffin Building Material Co.

DEVINE, J. We have but one question to answer in this case in order to arrive at our decision, namely, does a certain safety order of the Division of Industrial Safety (Cal. Admin. Code, tit. 8, § 1576, subd. (e)) apply to a flat-bed truck which is carrying a load of fabricated house frames?

Plaintiff, the respondent, was construction superintendent of a housing subdivision construction project. On June 22, 1959, an employee of Griffin Building Material Company, the appellant, drove a flat-bed, three-axle truck and a two-axle trailer to the site of the housing project, the truck carrying two frame loads and the trailer two frame loads, each frame load being sufficient for a single house. The trailer was driven onto a vacant lot which was part of the housing project but on which construction had not yet started, and was unlocked from the truck. The truck was then driven to a lot where the frames were required, was unloaded, and was driven back to the trailer for the purpose of transferring the frames from the trailer to the truck. Plaintiff was helping in the process of removing the frames from the one vehicle to the other by manipulating rollers at the back end of the trailer with an iron bar. As he was locking one of the rollers, the truck driver backed the truck, squeezing plaintiff’s hand between the truck and the trailer and causing severe and permanent injury to the hand.

The issues in the ease, as defined by the pretrial order, were negligence, proximate cause, contributory negligence and damages. The jury found a verdict for plaintiff in the amount of $27,368.38. Defendant appeals upon the sole ground that it was prejudicial error for the judge to instruct the jury on violation of section 1576, subdivision (e) of title 8 of the California Administrative Code, with the usual direction that if a party to the action violated the industrial safety order, a presumption arises that he was negligent, and with the usual and correct direction as to how the presumption might be overcome and as to the necessity that a violation be a proximate cause of the injury. There is no doubt that if [200]the giving of the instruction was error, it was prejudicial, because there was no contention on the part of the appellant that if the safety order did apply it was not violated. Nor was there any attempt on the part of the appellant to show circumstances which would excuse violation, if there were such violation. It was appellant’s contention as it is on appeal, that the safety order was not applicable to its truck. After the jury had been unable to agree on a verdict for several hours, they returned and asked for. a reading of the safety order. Therefore, there could be no argument, and, indeed, respondent does not make any, that if there were error, it was not prejudicial.