Opinion
3-28-1952
WHALEN v. RUIZ et al. Civ. 7921.
Fred Pierce, Sacramento, for appellant. Devlin, Devlin & Diepenbrock, Sacramento, for respondents.
WHALEN
v.
RUIZ et al.
March 28, 1952.
Rehearing Denied April 23, 1952.
See 242 P.2d 940. *
Fred Pierce, Sacramento, for appellant.
Devlin, Devlin & Diepenbrock, Sacramento, for respondents.
SCHOTTKY, Justice pro tem.
Plaintiff commenced an action to recover damages for injuries sustained by him when an auto-bus in which he was riding ran off the I Street bridge over the Sacramento River. It was alleged that the driver of the bus was negligent and that he was the employee of defendant Ruiz, an uninsured labor contractor; and that defendant King was liable under section 402 of the Vehicle Code in permitting Ruiz to operate the vehicle owned by King. It was alleged, also, that the defendant railroad company negligently and carelessly constructed and maintained the bridge. Issues were joined, and following a trial before the court, without a jury, the court found as follows: (1) That the driver of the anto-bus, as the employee of defendant Frank King, 'so negligently operated said auto-bus that as a proximate and contributing result thereof, said auto-bus was caused to, and same did, run off of said bridge and plunge to the ground below'; (2) that the overhead structure of the bridge was negligently maintained; that as a proximate and contributing result of said negligent maintenance, the automobile in which plaintiff was riding ran off of the bridge and plunged to the ground below; (3) that defendant railroad is the owner and operator of the I Street Bridge; (4) that construction of the overhead or roadway portion of the bridge is controlled by an agreement dated September 6, 1910, executed by the defendant railroad and the counties of Sacramento and Yolo; that by such agreement the defendant railroad 'leased to said two counties the right to use said overhead structure of said bridge and approaches thereto for highway purposes for a term ending on September 13, 1916, and from and after said last mentioned date, said Railroad Company agreed to grant to said counties, and did grant to said counties, a right, easement and privilege of using the overhead structure and approaches thereto for highway purposes and for the life of said bridge for railroad purposes'; and that by the agreement the defendant railroad 'agreed to repair, police and operate said overhead structure and approaches thereto'; (5) that the agreement 'does not include any obligation on the behalf of said Southern Pacific Railroad Company, or any other defendant herein, to do more than to maintain said structure according to the design and plan under which said bridge was originally built and that there was no obligation * * * to make structural changes to meet changing traffic conditions'; (6) that the overhead structure and approaches thereto are a part of the State Highway System; (7) that plaintiff was not an employee of defendant Al Ruiz but was an employee of defendant Frank King and was engaged in the course of such employment when injured, and that at the time of the accident defendant Frank King and plaintiff were subject to the Workmen's Compensation Act of the State of California, Labor Code, § 3201 et seq.; and (8) that by reason of the injuries received in said accident plaintiff suffered damages in the sum of $26,871.75.
From the foregoing findings the court concluded that the sole remedy of plaintiff against defendant Frank King was within the jurisdiction of the Industrial Accident Commission and that the court had no jurisdiction; and further that plaintiff take nothing by his complaint. Judgment was accordingly entered in favor of all defendants, and plaintiff has appealed upon the judgment roll from that portion of the judgment which decreed that plaintiff take nothing against defendant railroad.
The theory of appellant's case is that respondent railroad failed to maintain an adequate guard rail and curbing along the edge of the pavement on the overhead deck of the bridge. At the time of the accident, September 6, 1947, the bridge was equipped with an eight inch curb and an iron railing, as provided in the original specifications. The bridge was completed in 1912. Appellant contends that where a railroad company constructs a bridge over its tracks which is used by the traveling public at the express or implied invitation of the railroad company, the latter owes a duty to members of the public using the bridge to construct and maintain it in a reasonably safe condition. Appellant cites Comstock v. Great Northern Railway Co., 157 Minn. 345, 196 N.W. 177. In that case the car in which plaintiff was riding crashed through the railing of a bridge which the railroad maintained over its tracks. The court stated, 196 N.W. at page 177: 'It may be conceded, for the purposes of this appeal, that no negligence could be found in the grade, the curve, or the ordinary railing or its maintenance, or in an alleged ridge in the floor. But there was ample evidence that, since the advent of the automobile, it is customary to provide bridges with guard rails or wheel guards.'
In Calley v. Boston & Maine Railroad Co., 93 N.H. 359, 42 A.2d 329, 330, 159 A.L.R. 115, the bridge maintained by the railroad had a nine inch wooden wheel guard. An expert testified that a twelve inch wheel guard was necessary to provide adequate safety. The court said that assuming this evidence to be true, the consulting engineer 'testified that a 12-inch curb, even if converted into a ramp by ice and snow, would have prevented the accident, and that the 9-inch wheel guard, though free from ice or snow, would not have stopped the car.'
Respondent railroad argues that no negligence can be charged against the railroad for failure to reconstruct the highway deck of the bridge to conform to modern traffic standards. It is argued that the railroad's obligations to the traveling public are fixed by the contract of September 6, 1910. This agreement provided for a bridge connecting the counties of Sacramento and Yolo, extending over the Sacramento River. It recited that the existing bridge which had been used in part for highway purposes was out of repair, and it was to be replaced by a new structure. The cost of the entire bridge was specified at $786,000. The overhead deck and approaches thereto cost $160,671. The contract provided that respondent railroad lease the overhead deck to Sacramento County for a period from the completion of the bridge until December 15, 1916, for a rent of $90,503.25, payable in yearly payments. For the portion of the bridge located in Yolo County, the respondent granted an easement to that county for the life of the bridge for a consideration of $33,039.89. The agreement then provided that until December 15, 1916 (the termination of the lease) the railroad 'agrees to keep in repair, operate and police as its own expense, the said bridge, including the floor of the overhead structure and the walks and railings thereon, and including the approaches to the said overhead structure.'
As to repairs of the overhead structure after the termination of the lease the contract provided: 'Whereas, it is recognized that after December 15th, 1916, the keeping in repair, operation and policing of the overhead structure, and approaches thereto, is properly chargeable to the said Counties of Sacramento and Yolo, and said Counties desire that the said 'Company' should agree to keep in repair and operate and police the same, as it is more convenient for the 'Company' to do so, Now, Therefore, the said 'Company' agrees to keep in repair, operate and police the said overhead structure, and approaches thereto, after December 15th, 1916, and during the life of said bridge for railroad purposes, and in consideration thereof, it is agreed as follows: [Sacramento County to pay $1500 per year and Yolo County $500 per year.]'
Appellant contends that the promise 'to keep in repair, operate and police the said overhead structure, and approaches thereto' after the termination of the lease was also an assumption of a duty upon the part of respondent railroad to maintain the overhead structure in a reasonably safe condition. It is argued that the proper construction of the agreement is that the respondent agreed to maintain the overhead structure in a safe condition under modern traffic demands, and that the trial court's finding that respondent did not agree 'to do more than to maintain said structure according to the design and plan under which the bridge was originally built' is not a logical construction of the contract.
Respondent argues that under common-law principles, the owner of the servient tenement (the railroad) is not obligated to maintain the easement in a safe condition for the use of those using the easement at the request of the easement owners (Sacramento and Yolo Counties). Respondent cites Restatement of Torts, section 349: 'A possessor of land over which there is a public highway or private right of way is not subject to liability for bodily harm caused to travelers upon the highway or persons lawfully using the way by his failure to exercise reasonable care (a) to maintain the highway or way in safe condition for their use. * * *'
Respondent argues that the curb and railings on the overhead deck of the bridge formed a part of the subject matter of the easement and that it was not the responsibility of respondent as owner of the servient tenement to alter the curbs and railings to conform to modern traffic conditions. Respondent contends further that its obligation to 'keep in repair, operate and police the said overhead structure' which it assumed after the grant of the easement does not obligate it to make structural changes in the bridge, and argues that the word 'repair' does not include reconstruction or alteration.
Respondent also contends that since the overhead structure and approaches thereto were designated as a traversable state highway, the statutes of California place upon the Department of Public Works the duty to keep such highway in a safe and usable condition. At the date of the accident in controversy, section 100 of the Streets and Highways Code provides: 'The department shall have full possession and control of all State highways. The department is authorized and directed to lay out and construct all State highways between the termini designated by law and on the most direct and practicable locations as determined by the commission, and to improve and maintain such highways as provided in this code. The department shall maintain any existing traversable highway which is between the termini of, and approximately on, any route included in the State highway system. The department may do any act necessary or proper for the construction, improvement, maintenance or control of all highways and properties which are under its control, including the construction, improvement, and maintenance of detours.'
There is no dispute as to the correctness of the principles of law cited by appellant and respondent. If the instant case were one in which an ordinary easement or right of way had been granted and respondent, as the owner of the servient tenement, retained no duty or obligation as to the control and operation of the bridge, we could readily decide that respondent could not be held liable for the accident which resulted in plaintiff's injuries. But under the finding of the trial court and the undisputed facts of the case, respondent railroad was the owner and operator of the bridge; and while it did grant the counties a 'right, easement and privilege of using the overhead structure and approaches thereto for highway purposes,' in the same agreement respondent railroad 'agreed to repair, police and operate said overhead structure and approaches thereto.' The court found that the overhead structure was negligently maintained and that as a proximate and contributing result of said negligent maintenance the automobile in which plaintiff was riding ran off of the bridge and plunged to the ground below.
Under this factual situation we are unable to agree that the respondent railroad was free from liability. We are also unable to agree with the conclusion of the learned trial judge that the agreement did not include any obligation on its part to do more than maintain said structure according to the design and plan under which said bridge was originally built and that there was no obligation to make structural changes to meet changing traffic conditions.
The bridge was built as a double track railroad bridge across the Sacramento River, with a second or highway deck and approaches thereto. The central portion of said bridge was necessarily operated as a drawbridge to permit the passing of boats up and down the Sacramento River. While an easement was granted to the counties as hereinbefore pointed out, it is apparent throughout the agreement that the respondent railroad company intended to and did retain control of the operation of said bridge and the structure thereof, and it is not difficult to understand why it should desire to retain said control, because as the builder and owner of all of said bridge, and because its railroad tracks ran across the lower portion of said bridge, it had a very vital interest in the safe operation and repair of the upper or highway deck of said bridge. And, as hereinbefore pointed out, respondent railroad company agreed 'to keep in repair, operate and police the said overhead structure, and approaches thereto, after December 15, 1916,' for an annual consideration of $2,000 paid by the counties of Sacramento and Yolo.
Even though, as found by the trial court, 'said overhead structure of said bridge and the approaches thereto have been, and still are, a part of the State Highway System,' and even though there might be some basis for holding the State and the counties (who are not parties to the action) also liable, we are satisfied that the trial court erred in its conclusion that respondent company was not liable under the facts and findings of the instant case. As we view the matter, said company was the owner and operator of the overhead structure of the bridge and had agreed for a monetary consideration to keep it in repair and operate it. The overhead structure was built for highway traffic across the Sacramento River and was intended to be used and was used for such traffic. And as stated in the quotation in respondent's brief from the case of Hamilton v. Southern Railway Co., 4 Cir., 162 F.2d 884, at page 890: 'There is no hard and fast rule as to the kind, character, and strength of the fence, or railing, or guard rails or other obstructions which must be erected and maintained; but they must be sufficient to protect a person driving an automobile on the highway at the point at which the bridge is located in the exercise of ordinary care against ordinary contingencies or those which may be reasonably apprehended. The requirement calls for more than a warning of the danger and a guide to the eye in keeping to the roadway; and the duty of the railroad company is not discharged by the erection and maintaining of a flimsy or rotten fence, or railing presenting a visible warning and guide to the eye, and a guard rail along the floor of insufficient height to deflect the wheels of an automobile which may come in contact with it when being driven over the bridge with ordinary care. Comstock v. Great Northern Railway Co., 157 Minn. 345, 196 N.W. 177; Hardin v. Southern Railway Co., 36 Ga.App. 427, 136 S.E. 802; Bond v. Billerica, 235 Mass. 119, 126 N.E. 281; Kelsea v. Stratford, 80 N.H. 148, 118 A. 9; Medema v. Hines [8 Cir.], 273 F. 52.'
The keeping in repair and operating such a bridge for such traffic necessarily means keeping it in a safe condition for the passage of such traffic and if this required repairs or additions or reinforcements of the curbs and railings of said bridge, respondent company, as the owner and operator of said bridge, and under the agreement hereinbefore referred to, was required to make them. And in view of the findings of the trial court that the overhead structure of the bridge was negligently maintained and such negligent maintenance was a proximate cause of the accident, we believe that the court erred in rendering judgment in favor of respondent railroad company.
As its final answer to the arguments of appellant for a reversal of the judgment, respondent makes the contention that the evidence shows as a matter of law that negligence of the driver of the auto-bus was the sole proximate cause of the accident and urges that, if this court should determine that respondent railroad was obligated to make structural changes to meet changing traffic conditions, then this court should amend the trial court's findings, to the end that it be found that the negligence of the driver of the auto-bus was the sole proximate cause of appellant's injuries.
As hereinbefore stated the appeal of appellant was upon the judgment roll. Thereafter respondent company made a motion for an order allowing the augmentation of the record on appeal by the addition of the entire reporter's transcript of the trial, or if such motion be denied, for an order allowing augmentation by the addition of the testimony of W. P. Hargrove, given at the trial. This court granted respondent permission to file, at its own expense, such portions of the record as it desired to file. Accordingly, respondent filed a reporter's transcript containing the testimony of a number of witnesses, but not of all of them, it being entitled 'Reporter's Transcript of Excerpt of Testimony Given Upon Trial.'
The trial court found that the negligent maintenance of the overhead structure of the bridge was a proximate and contributing result of the accident. Respondent argues that under section 956a of the Code of Civil Procedure this appellate court may make findings of fact contrary to those made by the trial court. Directly contrary to respondent's contention is the case of Isenberg v. Sherman, 212 Cal. 454, at page 461, 298 P. 1004, 1007, 299 P. 528, in which the court said: 'Appellants in their opening briefs took the position that since the addition of section 956a to the Code of Civil Procedure, in 1927, this court could pass upon the weight of the evidence and, in a proper case, make new findings, contrary to the findings of the trial court, in reversing a case. The position of appellants in this regard is unsound. In the case of Tupman v. Haberkern, 208 Cal. 256, 280 P. 970, it was specifically held that the rule that this court is bound by the findings of the trial court based upon substantial evidence was in no way changed by the addition of section 956a to the Code of Civil Procedure. This position was reaffirmed by this court in Davis v. Chipman , 293 P. 40.'
Respondent also contends, contrary to the court's findings, that the negligence of the driver of the auto-bus was the sole proximate cause of the accident. This contention is based upon evidence that the auto-bus was operated at an excessive rate of speed, and that the driver had been drinking. It is argued that the eight-inch curb affords ample protection to a person driving an automobile in the exercise of ordinary care.
Appellant contends that respondent railroad, not having appealed, may not challenge adverse findings nor urge error, and cites Henigson v. Bank of America Nat. Trust & Savings Ass'n, 32 Cal.2d 240, 244, 195 P.2d 777, 779, holding that 'it is well settled that parties who have not appealed cannot attack the findings; the only objections thereto which can be received being those urged by appellant.' Appellant also contends that respondent is precluded from challenging the insufficiency of the evidence since it has failed to bring all the material evidence before the appellate court. The appeal is on the judgment roll. Respondent's motion to augment the record was granted by this court, but, as appellant points out correctly, only a portion of the testimony relative to the issue of negligence was brought up. Appellant cites 2 Cal.Jur., p. 697: 'The appellate court will not consider the question of the sufficiency of the evidence unless all of the evidence is included in the record on appeal.'
We have read the transcript of the testimony as filed by respondent, and even assuming, as respondent contends, that we have a right to make a finding contrary to the finding of the trial court, we are convinced that we could not find that the evidence as a matter of law compels a finding that the negligence of the driver of the auto-bus was the sole proximate cause of the accident.
No other points raised require discussion.
In view of the foregoing, that portion of the judgment which decreed that plaintiff take nothing against defendant railroad is reversed.
ADAMS, P. J., and PEEK, J., concur. --------------- * Subsequent opinion 253 P.2d 457.