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District Court of Appeal, Fourth District, California.

James RICHARDSON and Latha Richardson, Plaintiffs and Respondents, v. HAM BROTHERS CONSTRUCTION COMPANY, a corporation et al., Defendants and Appellants.

Marco J. MEDIN, Jr., Roy W. Crosswhite, and Odessa Barnes, Plaintiffs and Respondents, v. HAM BROTHERS CONSTRUCTION COMPANY, a corporation, et al., Defendants and Appellants.

Ben W. BARNETT and Barbara Barnett, husband and wife, Plaintiffs and Respondents, v. Herbert HAM et al., Defendants and Appellants.

Civ. 4869.

Decided: October 28, 1954

Gray, Cary, Ames & Frye, James W. Archer, Ward W. Waddell, Jr., Thomas C. Ackerman, Jr., San Diego, for appellants. McInnis, Hamilton & Fitzgerald and William T. Fitzgerald, Franklin B. Orfield and Thomas P. Golden, and Hubert L. Rose, San Diego, for respondents.

These three actions, consolidated at the trial and on appeal, arise from orders granting new trials after judgments in favor of defendants based upon unanimous verdicts of the jury. The grounds upon which the motions were granted are insufficiency of the evidence to support the verdicts and misconduct of the jury.

The transcript of the testimony is voluminous and a complete statement of the evidence produced is difficult to set forth. On July 6, 1952, defendants and appellants Herbert Ham, Willard Ham and George Ham, individually and doing business as Ham Brothers Construction Company, had a contract to do certain earth-moving work on a hill overlooking Mission Valley near the San Diego State College. The place where the tract was being graded was unimproved brush land. It was bordered on the south by a residential section known as Talmadge Park and the remaining surrounding territory was more or less uninhabited except for scattered structures, house-trailers, etc. located below the hill or mesa where the contemplated subdivision was being cleared and graded.

Defendants were purchasing, on a rental basis, two Allis-Chalmers H D–20 bulldozers weighing about 26 tons. They were equipped with fluid drive units and an electric starter and were powered by Diesel engines. They had no electrical ignition system. They were not equipped by their manufacturer with any sort of lock. However, the sales agency furnished a homemade locking device consisting of a short bar or section of steel tubing cut in half lengthwise and welded to the shackle of a padlock. It fitted a sleeve between a knob on the starter plunger shaft and the starter switch, preventing depression of the starter plunger shaft. The padlock shackle went around the plunger shaft and sleeve, holding the sleeve in place. One witness testified the sleeve could be pried off with any sort of tool, and other witnesses knew of no other way of locking bulldozers. The bulldozers were moved to the tract and it was stated by one witness that the only locking device used on the bulldozer involved in this accident was lost; that he cut and fitted a new piece of tubing and supplied another lock; and that the new sleeve and lock were used in the same manner as the old one except that the sleeve was not welded to the lock shackle.

At the close of the last work day prior to the accident, the operator of that bulldozer parked it near its mate on level ground on the Alvarado tract. He buried the blade in about five cubic yards of dirt as a precaution against moving, and pulled out the compression lever to stop the engine. He testified he also applied the lock and sleeve. One Finney, who serviced the bulldozers, testified that he saw this witness do something in the area of the lock, and that he checked the bulldozer afterwards and found both lock and sleeve in place; that the locking devices were applied as a general precaution, and that the defendants had never experienced any trouble with vandals starting their equipment; that their bulldozers had never injured anyone before, and he could not recall injuries to anyone other than employees at any place he had ever worked; that while all employees were instructed to keep people away from the machines, people came near so rarely that there was almost never occasion to enforce the order; that the Alvarado Tract operation had been observed by many people from a highway in a valley some distance away, but only a few people had come on the tract, and none had been seen on or about the bulldozers.

During the day of July 6th, one Dietrich, aged 17 years, and one Fugate, aged 20 years, called on one Hamm, aged 18 years (no relation of defendants) and they proceeded to drink some intoxicants. Late that night they decided to go for a ride in their car with Mrs. Hamm. Someone mentioned having seen the bulldozers upon the mesa and they decided to go up there for the express purpose of racing them. Hamm and Fugate proceeded to attempt to start them. Hamm testified he and Fugate each tried to start one by pushing and pulling every lever in the cab; that eventually he found the starter plunger and discoverd he could make the motor turn over. He said there was a lock and sleeve on one motor but he found only the lock and no sleeve on the other (the one they were able to start.) He said that no tools were used in starting it. The next day the bulldozer was found to have the lock in place but no sleeve.

It was testified that at that time an effort was made by its then operator to start it with the padlock on it, as described, but it would not start until the lock was removed. There was evidence that ether capsules, used to facilitate the starting of such motors, were found near the spot where the bulldozers had been parked, and that the defendants never used such capsules. There was evidence also that the starter terminals bore burn marks such as would have resulted had a metal bar been placed across them to short-circuit the starter switch, and that it was possible that such a bulldozer could be started in this fashion.

It appears that after the bulldozer was started Hamm and Fugate drove it around the mesa for 15 to 30 minutes, and during that time considerable damage was done to the streets and other improvements. Hamm claims that during much of that time he and Fugate were struggling to control and stop the bulldozer, and that this effort consisted of pulling and pushing every control in sight. The bulldozer was equipped with a gearshift having forward, neutral and reverse positions. When the gears are in neutral the bulldozer will not move. Hamm claimed that he and Fugate never intentionally shifted gears.

Hamm testified that they were unable to stop the motor on the bulldozer so they finally headed it towards a canyon to the east of the tract and turned it loose and jumped out. It went on its own power off the north edge of the mesa, down the hill, across a freeway and traveled for about one mile before it was halted by a retaining wall and a utility pole. Before it stopped it had crashed through a house where the occupants were sleeping and severely injured them, wrecked a house-trailer and an automobile, causing serious property damage and personal injuries. Separate actions by three plaintiffs were consolidated for trial. The trial resulted in unanimous verdicts for the defendants, which were set aside by the court in granting the motions for new trial.

It is defendants' position that as a matter of law the evidence presented is not sufficient to support a judgment for the plaintiffs and accordingly will not support the order granting them new trials on the grounds of insufficiency of the evidence to support the verdicts; that upon the plaintiffs rested the burden of proving that defendants were negligent and that defendants' negligence proximately caused plaintiffs' injuries; that they failed utterly to meet this burden; that defendants were not insurers of the safety of others; that they were not bound to exercise the highest degree of care, but only to exercise such care as reasonable men of ordinary prudence would exercise under the same circumstances; that defendants' duty of care must be measured by the situation with which they were faced; that only acts or omissions creating an unreasonable risk of injury to others are negligent; that there was no reason to anticipate harm from leaving the machines parked under the circumstances; that the area was on an isolated mesa, outside the city, and remote from any houses, and no one could be expected there at night except intentional trespassers; that innocent third parties were far away from the place where the bulldozers were left and a few people had come to the subdivision to watch the operation, but none had been seen to come near the equipment; that Ham Brothers had experienced no previous trouble with vandals tampering with their equipment; that the equipment is not easy to start; that the manufacturer of the bulldozer did not think it necessary to supply it with a lock; that defendant sales company supplied its customers with locks of its own construction but that was only an extra precaution taken by it; that the manufacturer's failure to supply locks would seem to be indicative of the amount of risk foreseen by men familiar with such equipment; that in order to justify a finding of negligence it would be necessary to hold that it was foreseeable that drunken vandals of the age of these young men would go to the mesa for the purpose of racing the bulldozers, and having done so would succeed in starting one; that there is no evidence of any fact putting defendants on notice that theft of their machines was likely; that nothing had happened on this or any previous job to give them warning of that fact; that the mere presence of a few spectators is insufficient for that purpose; that there is no evidence that theft of such machines is a problem to their owners generally; that there was no reason to anticipate that a person enterprising enough to start such a machine would be unable to stop it, since it could only be started when the compressor and gearshift were in proper adjustment and even then only by proper manipulation of the starting mechanism; that moving the compression lever would stop the motor, and shifting the gears into neutral would stop the motion of the machine; that in addition it is common knowledge that releasing the blade will soon cause a bulldozer to stall; that it seems incredible that one capable of starting the machine, even by trial and error, could not stop it by the same process, if he wished to do so; that even if defendants could reasonably be required to foresee that the bulldozer might be started and could not or would not be stopped, it need not be anticipated that on a wild mesa surrounded by canyons the bulldozer might be turned loose and travel in the one direction in which it could cause serious damage before stalling; that there is no evidence that the defendants could have prevented the incident; that no practical way of frustrating the efforts of a sufficiently determined thief or vandal was suggested; that witnesses testified that the lock was used on this occasion and that there is nothing improbable about that testimony; that even if the sleeve that formed part of the locking device were missing, the presence or absence of the sleeve was immaterial; that it would do no more than merely discourage the curious, and clearly, it was not designed to stop a person determined to start the equipment; that it could hardly be expected to stop people like Hamm and Fugate, who had come to the mesa for the sole purpose of stealing and racing the bulldozers; that the owner of a vehicle is not ordinarily negligent toward third persons, in this state, even if he leaves it wholly unlocked; that there is far more reason to anticipate danger from leaving a car unlocked than leaving a bulldozer unlocked; that car owners who do not lock their cars are not charged with negligence when a thief crashes the stolen car; that California has no statute requiring the locking of parked cars and no statute requiring the locking of parked bulldozers; that even if the theft were foreseeable, if injuries to persons other than trespassers were not reasonably foreseeable as an ordinary and proximate result or consequence of some act or omission of defendants they are not liable; and that even if all these things were foreseeable, defendants exercised ordinary care to guard against them, citing such cases as Fowler v. Key, System Transit Lines, 37 Cal.2d 65, 230 P.2d 339; Frace v. Long Beach, etc., School District, 58 Cal.App.2d 566, 137 P.2d 60; Hale v. Pacific Telephone & Telegraph Co., 42 Cal.App. 55, 183 P. 280; Richards v. Stanley, 43 Cal.2d 60, 271 P.2d 23; Weldy v. Oakland High School District, 19 Cal.App.2d 429, 65 P.2d 851; Kiste v. Red Cab, Inc., 122 Ind.App. 587, 106 N.E.2d 395; and Wilson v. Harrington, 269 App.Div. 891, 56 N.Y.S.2d 157, affirmed 295 N.Y. 667, 65 N.E.2d 101.

It is apparent from the recited facts that the verdicts of the jury finding that defendants were not guilty of negligence contributing proximately to the cause of the injuries of plaintiffs were fully supported by the evidence. However, the question before us is whether the evidence and reasonable inferences deducible therefrom produced at the trial would support a judgment for plaintiffs and accordingly justify the actions of the trial court in granting a new trial. This presents a very close question. Plaintiffs point out certain additional or conflicting evidence which they claim would support such a judgment, i. e., testimony to the effect that one bulldozer was not sufficiently locked and in order to start this type of bulldozer, unlike other makes such as a caterpillar, one is required only to step on the starter at a time when the compression lever is depressed; that if the defendants' bulldozer was in a driving gear when the engine started the equipment would immediately start moving; that it is not necessary that the bulldozer be in neutral in order for the engine to start; and that once started, the only way to stop it is to pull the compression lever out.

In respect to defendants' claim that the locking device for the bulldozer in question had been lost shortly before the acident and that defendants had made a home-made substitute out of a piece of steel pipe and a padlock, which they had used for some time, the trial judge remarked, in granting the new trial, that he did not believe this testimony since Hamm testified that no sleeve was in place on the night in question.

Plaintiffs contend that the evidence shows that during the time defendants had been engaged on this particular site, there had been a great many people attracted to that area to watch the bulldozers in operation and that on occasions there were people about the bulldozers when employees of the defendants left the area after quitting time, and that these people were of all ages. This evidence is contradicted by the defendants.

Defendant Herbert Ham testified that generally he issued verbal orders to his employees not to allow people on the tractors and to ‘chase them away’ when they were getting too close to them because he was afraid that unauthorized persons might get on the bulldozers and that they might start them; that if they did, he agreed that the bulldozers would be a danger to both the occupants and to others. One of defendants' employees testified that he was the last employee of defendants to leave the bulldozers before the accident occurred; that he locked the bulldozer, but stated he had no actual recollection, and only so testified because it was his usual habit to do so. His co-employee, however, testified that that particular employee had on other occasions, and as often as once every two weeks, left his bulldozer unlocked. However, he did testify that he checked the bulldozer on that night and found both the lock and sleeve in place.

Donald Hamm, one of the alleged culprits, testified he had seen these bulldozers going up and down that hill for four or five days; that ‘a lot of people’ were stopping and looking at them, not while they were stopped, but people were fascinated because they were going ‘practicable straight up and down hill, and a lot of cars stopped on the highway below and watched them work’. He further testified that that night he moved every lever possible to start the tractor and finally found on the floor a starter button; that he stepped on it and the motor turned over; that he then went over to the other bulldozer and found it was locked by a padlock and steel sleeve and would not start; that they went back and found a padlock on the other one but no steel sleeve and that they again started the motor as before, pushed some levers, and it moved for some distance and they found they were unable to stop it so they headed it into what they thought was a safe direction and jumped. There is testimony that the following day the locking device was found to be in the condition described by Hamm, i. e., that the padlock was in position without the sleeve. It was conceded that defendants' employee there endeavored to start it with the padlock in place and it would not start. Plaintiffs contend that this may have been due to the mechanical condition of the tractor after going through the various obstructions.

Plaintiffs now contend that the test for determining the issue of negligence is whether or not a person of ordinary prudence should have foreseen that someone might be injured by his action or nonaction, citing Mosley v. Arden Farms Co., 26 Cal.2d 213, 157 P.2d 372, 158 A.L.R. 872; that defendants were using heavy equipment in an area close to plaintiffs' home and near heavily traveled highways; that they were using equipment which, once started, was difficult to stop unless someone was familiar with the mthod of operation; that it was equipment which, when the controls were placed in a certain way, could be started by the simple process of depressing the starter; that once started, the equipment would start ahead at a speed depending on the set of the idling control; that once started the equipment, weighing from 26 to 27 tons, knew no boundaries and would continue through practically every kind of barricade and over any type of terrain; that each of the defendants' employees and the defendants Ham had observed people who were attracted to the operation of the bulldozer; that they well recognized a great many people regarded themselves as having the ability of competent operation of heavy equipment; that defendant Herbert Ham admitted that he anticipated the possibility that children or other irresponsible persons would get on the equipment and attempt to start it; that once started, he recognized that the equipment would be very likely to cause injury; that the sales agent, since 1946, had made a habit of supplying a locking device with every bulldozer it handled, and accordingly the result which occurred here was the risk which was or could have been reasonably foreseen if the locking device was not used; that it was immaterial that an intervening force started the bulldozer and brought about the results; that defendants' responsibility extends to such intervention; that their negligence consisted in failing to protect plaintiffs against that risk; that the only possible reason why defendants attempted to make it their custom and habit to use that locking device was to prevent unauthorized persons from starting the equipment; that they well recognized the average person who started that equipment would not be familiar with the operation of a bulldozer, and because of the peculiar nature of this type of bulldozer they recognized that once started, it created an unreasonable risk of danger to a class of persons of which plaintiffs were members, citing such cases as Stasulat v. Pacific Gas and Electric Company, 8 Cal.2d 631, 637, 67 P.2d 678; and Toschi v. Christian, 24 Cal.2d 354, 149 P.2d 848. They also argue that the rule in California holding that an automobile owner is not liable to third parties because of negligence in leaving a car unlocked is not applicable to a bulldozer; that once a thief or ‘irresponsible person’ starts an automobile, he can easily control it, and if he wishes, he can easily stop it; that this is not true in the case of a bulldozer where one must be proficient in its operation; that if one wishes to stop an automobile he need only fail to depress the accelerator; that in the case of the bulldozer, the mere starting of the engine will start the bulldozer moving and that one cannot stop it by pressing on brakes; that in addition, it seems to be human nature for the average person to regard himself as a ‘sidewalk contractor’, and since the testimony is that all classes and all ages of persons would be attracted to the area by the operation of the bulldozer, such would not be the case in the operation of an automobile; that the defendants here well knew that spectators who had been attracted to the bulldozers would be incompetent to handle anything as unusual as a bulldozer; and that therein lies the distinction indicated in Richards v. Stanley, supra, wherein it is held, 43 Cal.2d at page ——, 271 P.2d at page 26, that in the case of a thief who steals an automobile, the owner is not liable ‘in the absence of facts putting the owner on notice that the third person is incompetent to handle it.’ It is then claimed that the failure of the defendants to lock the bulldozer was the proximate cause of the accident, citing Benton v. Sloss, 38 Cal.2d 399, 240 P.2d 575; and Zuber v. Clarkson Construction Company, 363 Mo. 352, 251 S.W.2d 52.

We do not see much logic to this argument. The culprits involved were not children in the real sense of the word as applied to attractive nuisances, although they may have been classed as incompetent persons due to their partially intoxicated condition. It hardly seems reasonable to us to say that defendants should have anticipated that such persons would become incompetent by the use of intoxicants and would thereby be attracted to do what they did do with defendants' bulldozer. However, the trial judge was otherwise impressed and granted a new trial.

It is a familiar rule that trial judges should grant new trials when in their opinion the verdicts of the jury are against the weight of the evidence. Clippinger v. Reiss, 17 Cal.App.2d 604, 62 P.2d 418. This practice has been encouraged by the appellate courts on many occasions because of a different rule that applies to appellate courts in this respect. Waid v. Smith, 87 Cal.App.2d 32, 195 P.2d 862. In Fisher v. Zimmerman, 23 Cal.App.2d 696, 73 P.2d 1243, this court held that in passing on a motion for new trial made on the ground of insufficiency of the evidence to sustain the verdict, a trial judge should review all the evidence, weigh its sufficiency, and judge the credibility of the witnesses, and he is at liberty to disregard the findings of the jury which are implied from the verdict. This discretion should, however, not be abused where the evidence would be insufficient to support a verdict in favor of the prevailing party if a new trial were granted.

The rule set forth in Richards v. Stanley, supra (quoting from the syllabus) is that ‘when existence of a duty rests on reasonable foreseeability of injury to plaintiff, it may become primarily a question for jury unless reasonable minds cannot differ, and necessarily involved in submitting case to jury is a preliminary determination that, granted a foreseeable risk, a duty arises.’

In McEvoy v. American Pool Corporation, 32 Cal.2d 295, 298, 195 P.2d 783, 786, cited in the dissenting opinion in Richards v. Stanley, supra, sections 447, 449 and 453 of Restatement of the Law of Torts were quoted, stating:

‘Section 447—‘The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor's negligent conduct is a substantial factor in bringing about, if (a) the actor at the time of his negligent conduct should have realized that a third person might so act.’

‘Section 449—‘If the realizable likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious or criminal does not prevent the actor from being liable for harm caused thereby.’

‘Section 453, Comment (a): ‘If the facts are undisputed, it is usually the duty of the court to apply to them any rule which determines the existence or extent of the negligent actor's liability. If, however, the negligent character of the third person's intervening act or the reasonable foreseeability of its being done is a factor in determining whether the intervening act relieves the actor from liability for his antecedent negligence, and under the undisputed facts there is room for reasonable difference of opinion as to whether such act was negligent or foreseeable, the question should be left to the jury.’ (Italics ours.)'

Accordingly, we conclude that we cannot say, as a matter of law, that the facts established and the reasonable inferences to be drawn therefrom are wholly insufficient to show a violation of duty and care owing by defendants toward plaintiffs, as a class. Benton v. Sloss, 38 Cal.2d 399, 240 P.2d 575; Zuber v. Clarkson Construction Company, 363 Mo. 352, 251 S.W.2d 52. While we would have made a contrary ruling on the motion, we feel compelled to sustain the order made.

Next it is claimed that the trial court erred in receiving in evidence over objection and considering an affidavit of one juror in support of the motion for new trial respecting a certain test made by her in the jury room in connection with the pliability of the steel sleeve placed in evidence. It is ordinarily held that a juror's affidavit cannot be used to impeach the verdict except as provided by sec. 657, subd. 2, Code Civ.Proc. People v. Reid, 195 Cal. 249, 232 P. 457, 36 A.L.R. 1435; Newman v. Los Angeles Transit Lines, 120 Cal.App.2d 685, 694, 262 P.2d 95. Since the orders granting new trials are otherwise supported, it becomes unnecessary to determine this claim.

Orders granting new trials affirmed.

GRIFFIN, Justice.

BARNARD, P. J., concurs.

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