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Court of Appeal, Third District, California.

Robert W. PIKE and Aaron J. Pike, Minors, by and through their Guardian ad Litem, Patsy (Pike) White, and Patsy (Pike) White, individually, Plaintiffs and Appellants, v. FRANK G. HOUGH COMPANY, a Corporation, and International Harvester Company, a Corporation, Defendants and Respondents.

Civ. 11957.

Decided: August 28, 1969

P. M. Barceloux, Burton J. Goldstein, Goldstein, Barceloux & Goldstein, by Albert E. Levy, Chico, for plaintiffs-appellants. Rich, Fuidge, Dawson, Marsh & Morris, by Thomas Marsh and Dennis C. Noonan, Marysville, for defendants-respondents.

The decedent Robert W. Pike, an employee of Oro-Dam Constructors, was killed when struck by a Hough, Model D–500 Paydozer, which was being used in the building of the Oroville Dam. The paydozer was manufactured by defendant Frank G. Hough Company and had been sold by said defendant to Oro-Dam Constructors. Plaintiffs, the wife and children of the decedent, appeal from a judgment of nonsuit granted to defendants.

At the time of the accident, 3 o'clock in the morning, Pike was working as a ‘spotter,’ and had so worked for the same paydozer operator for eight to nine months. The job of the ‘spotter’ was to direct the ‘660’ dump trucks which dumped the fill to be spread and tamped down by the paydozer in filling the dam. Pike, who suffered from grand mal epilepsy, worked the graveyard shift and on the night of the accident he was wearing his customary luminous jacket and was carrying a ‘spotter's wand,’ i. e., a yellow flashlight. The damsite was illuminated with mercury lights.

The men working in this particular area were filling in a corner, and thus it was necessary for the paydozer to go forward and then backward in a short distance. The spotters usually worked in front of the paydozer, but for some reason which is not clear from the record Pike must have positioned himself so that he was directly behind the paydozer. At the time of the accident, the paydozer operator, who hadn't seen Pike for five minutes, looked to his rear to see if he was clear. The operator didn't see Pike, but he admitted that the paydozer had a blind area to the rear. Another paydozer operator also testified that the machine had a blind area to the rear. The operator then backed up approximately 30 to 40 feet, when he was stopped by a fellow employee who told him that he had run over Pike. This employee had previously seen Pike directly behind the paydozer, with his back partially toward the machine. The paydozer had struck Pike, killing him instantly.

The Hough Model D–500 Paydozer was a noisy machine when in operation. It had no rearview mirrors, nor audible backup warning signal. Although the vehicle had a horn, the operator did not ordinarily use it in backing up. The paydozer had headlights and on the rear a pair of red lights and a pair of white lights. Only the red lights were on at the time of the accident; the headlights were off because the 660 operators complained of the glare, and the rear white lights were off because they blinded other equipment operators. The evidence was conflicting as to whether persons standing to the rear could feel the exhaust coming from the paydozer.

Robert Snyder, a registered mechanical engineer, was called on behalf of plaintiffs. Snyder had previously done work in accident analysis. He had examined the paydozer physically and also made engineering sketches from the brochure advertising the paydozer. Snyder concluded that the operator had limited visibility to the rear and that there was a definite blind spot which measured approximately 48 feet behind the paydozer and at least 20 feet across.

In order to increase the rearward visibility of the operator, Snyder suggested the installation of two rearview mirrors located four feet out from each side of the cab. He stated that he had seen such mirrors once before on a ditchdigger. Although there would still be a smaller blind area, the overall effect would be to cut down such an area greatly. He also recommended that the rear of the machine contain a blinking amber light and a tooting horn to warn people when it was backing up.

As we have noted, the equipment in question was manufactured by the Frank G. Hough Company, all of whose stock is owned by the International Harvester Company. A nonsuit was granted to International Harvester Company on the basis that it had no part in the manufacture of the paydozer. A nonsuit was also granted to Hough, apparently on the basis that there was a failure of proof as to negligent design and breach of warranty, the absence of governing safety orders, and, as to strict liability, there was no showing that the product had a ‘defect’ which raised any unreasonable risk of harm.

Plaintiffs contend the manufacturer Frank G. Hough Company supplied a defective chattel, the vehicle having been defectively designed, which was a substantial factor in bringing about the death of decedent, that the defective design was the failure to provide rearview mirrors and a safety device or warning device on the back of the vehicle, the lack of which was a substantial factor in causing decedent's death; and that the design aspect was a question on which reasonable minds might differ, and thus a question for the jury to decide and not the trial court.

As we will explain below, we reject the contentions of plaintiffs under the particular facts of this case.

Initially we note the rules governing nonsuits, which were recently restated by the Court in Elmore v. American Motors Corp. (1969) 70 A.C. 615, 620–621, 75 Cal.Rptr. 652, 655, 451 P.2d 84, 87:

‘A nonsuit in a jury case or a directed verdict may be granted only when disregarding conflicting evidence giving to the plaintiff's evidence all the value to which it is legally entitled, and indulging every legitimate inference which may be drawn from the evidence in plaintiffs' favor, it can be said that there is no evidence to support a jury verdict in their favor. [Citations.]’

And in Ulwelling v. Crown Coach Corp. (1962) 206 Cal.App.2d 96, 104–105, 23 Cal.Rptr. 631, 635; the court states: ‘[B]efore a judgment of nonsuit can be disturbed, there must be some substance to plaintiff's evidence upon which reasonable minds could differ; proof that raises mere speculation, suspicion, surmise, guess or conjecture is not enough to sustain his burden.’

There are two theories under which the plaintiffs could establish liability, to wit: strict liability and negligent design. As stated in Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 62, 27 Cal.Rptr. 697, 700, 377 P.2d 897, 900, 13 A.L.R.3d 1049: ‘A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.’

And as stated by this court in Canifax v. Hercules Powder Co. (1965) 237 Cal.App.2d 44, 56, 46 Cal.Rptr. 552, 559.

‘Liability of suppliers of chattels does not rest solely upon strict liability. It may also rest upon negligence. (See, e. g., 2 Restatement 2d Torts, §§ 301–401.) As stated by Dean Prosser (Prosser on Torts, Hornbook Series, 3d ed., p. 648): ‘The seller's negligence may take a number of forms.’

‘The author enumerates some of them and then states (on p. 649): ‘Most frequently, it [i. e., negligence] consists merely in failure to exercise reasonable care to inspect the goods to discover defects, or in preparing them for sale. When the action is one for negligence, it is of course agreed that the care required of the seller is only that of a rasonable man under the circumstances.’'1

A question of law thus presents itself as to whether the paydozer in the instant case was defectively designed under either of the above two theories. (Canifax v. Hercules Powder Co., supra, 237 Cal.App.2d at p. 55, 46 Cal.Rptr. 552; Larsen v. General Motors Corporation (1968–8th Cir.) 391 F.2d 495, 498; see, Frumer & Friedman, Products Liability, §§ 7.01[2]–7.01[3], pp. 109–110.6.)

It is clear that under the law today a manufacturer is legally bound to design and build a product which is reasonably fit and safe for the purpose for which it is intended (Varas v. Barco Mfg. Co. (1962) 205 Cal.App.2d 246, 258–259, 22 Cal.Rptr. 737; Zahora v. Harnischfeger Corporation (1968–7th Cir.) 404 F.2d 172), and for other uses which are foreseeably probable. (2 Harper & James, The Law of Torts, Liability of Suppliers of Chattels, §§ 28.4–28.5, pp. 1541–1546.) Thus, liability may attach if there has been a failure to provide safety features or devices. (Noel, Manufacturer's Negligence of Desingn or Directions for Use of A Product, 71 Yale L.J. 816, 822–827; cf. Brooks v. Allis-Chalmers Mfg. Co. (1958) 163 Cal.App.2d 410, 329 P.2d 575.)

The general principles governing design are as follows: A manufacturer is not an insurer that his product is, from a design viewpoint, incapable of producing injury. Thus, there is no duty to produce an accident or foolproof product, or to adopt a product incorporating only features representing the ultimate in safety. Generally, the manufacturer's liability is limited to hidden defects and concealed dangers, and this may be so even though other manufacturers provide safety devices. It is unreasonable to require that a maunfacturer warn or protect against ever injury which may ensue from a mishap in the use of the product. At times the courts also stress the fact that where the peril or danger is patent to all no liability attaches. Therefore, a failure to guard against remote possibility of an accident does not constitute negligence, and there is no duty merely because a particular safety devise is ‘feasible.'2

Considering the evidence most strongly in favor of plaintiffs, which we are required to do, the record shows the following: the paydozer had a blind spot in the rear; a mechanical engineer testified that rearward visibility could be improved by the addition of rearview mirrors and recommended that the rear of the machine contain a blinking amber light and tooting horn for backing-up purposes.

The fact that the decedent was a bystander and not a user, is immaterial, as a manufacturer of a product may be liable to a bystander either for negligence (Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn.L.Rev. 791, 817–820) or in strict liability. (Elmore v. American Motors Corp., supra, 70 A.C. 615 at pp. 624–625, 75 Cal.Rptr. 652, 451 P.2d 84.) Nevertheless, under the facts presented here, we do not believe that plaintiffs have made out a case either in negligent design or in strict liability by failure to include rearview mirrors or the suggested warning devices.

There are two fundamental rules applicable to a manufacturer's duty as to product design: first, the duty is one of reasonable care under the circumstances; and second, a manufacturer is not an insurer that his product is, from a design viewpoint, incapable of producing injury. (Note, 76 A.L.R.2d 91, 94.) We also note that in design cases the plaintiff must show that the particular injury-causing condition of the product made the product unreasonably dangerous. (Nader and Page, Automobile Design and the Judicial Process, 55 Calif.L.Rev. 645, 650; see also Rest.2d Torts, § 402A, p. 347.)

Under the foregoing rules and the facts of this case, we hold that the paydozer in question was not defectively designed. Plaintiffs have failed to show that the manufacturer has designed the machine so as to make it dangerous for the uses for which it was intended. See, Varas v. Barco Mfg. Co., supra, 205 Cal.App.2d at p. 258, 22 Cal.Rptr. 737; cf. Hatch v. Ford Motor Co. (1958) 163 Cal.App.2d 393, 329 P.2d 605; Rest.2d Torts, § 398, p. 1084. Furthermore, proof of nothing more than that a particular injury would not have occurred had the product which caused the injury been designed differently, is insufficient to establish a breach of the manufacturer's duty as to the design of the product. (Hatch v. Ford Motor Co., supra, 163 Cal.App.2d 393, 329 P.2d 605.) We note also that there was here no hidden or concealed defect. (Cf. Elmore v. American Motors Corp., supra, 70 A.C. at pp. 621–622, 75 Cal.Rptr. 652, 451 P.2d 84.)

Here we have a machine that was safe for the uses intended. By the very nature of the job, it was known to the workmen that the paydozer had to move backwards and forwards. The machine was equipped with rear lights, and the rear red lights were on at the time of the accident. As to the possible use of rearview mirrors, these are merely an accessory not necessary for the efficiency or safety of the paydozer when operated in a normal manner. And if such mirrors had been installed, the blind spot would not have been completely eradicated. In passing, we note the instant case is completely distinguishable from one, for example, involving passenger cars, where millions of such vehicles crowd our streets and highways, and may contain hidden defects. (See Elmore v. American Motors Corp., supra.) As to the other proposed safety devices (i. e., blinking light or horn), we cannot find that the lack of this equipment made the machine unreasonably dangerous. (See authorities cited above.)

Moreover, we think this case is more akin to Kolstad v. Chidotty, supra, 212 Cal.App.2d 228, 28 Cal.Rptr. 123, where the court held that the claimed defect consisted of an ‘obvious' lack of a guard on a sawyer's cage. (See also Mulligan v. Otis Elevator Company (1963–7th Cir.) 322 F.2d 633.) Here, the danger from a forward-moving or backing paydozer is patent or obvious. Such a machine is, potentially, a lethal weapon. This does not mean, however, that there was any breach of the manufacturer's duty (by the creation of an unreasonable risk of harm) to design a safe machine for its intended purpose by failing to equip the paydozer with the suggested additional equipment. (See Bartkewich v. Billinger (Pg.—1968) 432 Pa. 351, 247 A.2d 603.) We therefore find that there was no evidence of negligent manufacture or design; nor do we find any evidence of a design defect which would impose strict liability upon the manufacturer.

There being nothing in the evidence to support a jury verdict in plaintiffs' favor, we affirm the judgment of nonsuit.


1.  In an accident case based upon negligence, the burden is upon plaintiffs to establish that defendants had some duty to them and breached it, and that such breach was the proximate cause of the accident. (Ulwelling v. Crown Coach Corp., supra, 206 Cal.App.2d at p. 105, 23 Cal.Rptr. 631.)

2.  Ulwelling v. Crown Coach Corp., supra, 206 Cal.App.2d 96, 118–119, 23 Cal.Rptr. 631; Varas v. Barco Mfg. Co., supra, 205 Cal.App.2d 246, 22 Cal.Rptr. 737; Zahora v. Harnischfeger Corporation, supra, 404 F.2d 172; Krentz v. Union Carbide Corporation (1966–6th Cir.) 365 F.2d 113; Evans v. General Motors Corporation (1966–7th Cir.) 359 F.2d 822; Messina v. Clark Equipment Company (1959–2d Cir.) 263 F.2d 291; Young v. Willys Motors, Inc. (1959–8th Cir.) 271 F.2d 209; Jamison v. Woodward & Lothrop (1957) 101 U.S.App.D.C. 32, 247 F.2d 23; Marker v. Universal Oil Products Company (1957–10th Cir.) 250 F.2d 603; McNally v. Chrysler Motors Corporation (1967) 55 Misc.2d 128, 284 N.Y.S.2d 761; Hays v. Western Auto Supply Company (Mo.—1966) 405 S.W.2d 877; Kientz v. Carlton (1957) 245 N.C. 236, 96 S.E.2d 14; Day v. Barber-Colman Company (1956) 10 Ill.App.2d 494, 135 N.E.2d 231; Campo v. Scofield (1950) 301 N.Y. 468, 95 N.E.2d 802; see also, Crane v. Sears Roebuck & Co (1963) 218 Cal.App.2d 855, 32 Cal.Rptr. 754; Kolstad v. Ghidotty (1963) 212 Cal.App.2d 228, 28 Cal.Rptr. 123.

REGAN, Associate Justice.

FRIEDMAN, Acting P. J., JANES, J., concur. Hearing granted; TRAYNOR, C. J., did not participate.