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District Court of Appeal, First District, Division 3, California.

Thomas MILLOWAY, Plaintiff and Respendent, v. GRIFFIN BUILDING MATERIAL COMPANY, Defendant and Appellant.

Civ. 19907.

Decided: February 08, 1962

Grunsky & Pybrum, Donald L. Grunsky, Watsonville, for appellant. Morgan, Beauzay & Holmes, San Jose, for respondent.

We deny respondent's petition for rehearing, but we make certain corrections in our factual statement; and, because respondent has altered considerably the emphasis he places on different parts of the safety order, we comment briefly on his argument as freshly stated in his petition for rehearing.

The factual corrections are these: (1) Although the word ‘frames' was used in the testimony of the drivers, the word ‘lumber’ also was used, and we are quite willing to accept, and we do accept, respondent's statement, because he is respondent and is entitled to the most favorable construction, that the material hauled was lumber intended for, but not fabricated into, house frames, and that there was a load of doors and nails. (2) The vehicle presumably was equipped with a horn audible at 200 feet (there being no evidence to the contrary), but it was not sounded.

We do not regard the safety order as requiring an automatic warning device on a flat-bed truck, whether the material hauled was lumber or frames, and although doors and nails were part of the load. In his petition for rehearing, respondent, although not conceding that the automatic device requirement does not apply to flatbed trucks, admits that it is logical that a dump truck is likely to back more often than a tractor and trailer combination, and that there is reason (and, by implication, we take it, more reason) to require an automatic device on the former. Respondent now argues that the requirement that all haulage vehicles be equipped with a manually operated warning device audible for 200 feet, and that the same is an acceptable substitute for the automatic one provided it is sounded just prior to or immediately following the start of backing, means not simply an exemption from the automatic device rule for those vehicles which are otherwise obliged to have such a device, but that all haulage vehicle drivers must sound such a device when backing on construction projects. Even if this construction of the safety order were correct, we believe there was prejudicial error in reading the order, including the requirement of automatic device, to the jury.

But we cannot construe the order, as respondent contends it to be, as writing into law a requirement that does not exist, and making it apply to all haulage vehicles on construction projects, not only with civil, but also with criminal, responsibility (Lab.Code, § 6315). By analogy, we note that section 27000 of the Vehicle Code requires all motor vehicles when operated on a highway to have a horn audible 200 feet, but does not require it to be sounded when the vehicle is backing, sounding of the horn being required when reasonably necessary (Veh.Code, § 27001), which is a question of fact (Smith v. Harger, 84 Cal.App.2d 361, 368, 191 P.2d 25); backing of a vehicle being regulated only with the limitation that it must be done only when the movement can be made with reasonable safety (Veh.Code, § 22106). Thus, the requirement that a vehicle be equipped with a horn is not equivalent to requiring it to be sounded, and there is no direction in the safety order that all haulage vehicles on construction projects sound horns when backing under penalty of being negligent as a matter of law.

In our opinion, we said that respondent does not make any claim that if there was error, it was not prejudicial, for so it seemed from his brief. Respondent does, in his petition for rehearing, argue that the negligence of the driver was so abundantly shown that any error was not prejudicial. Suffice it to say that the driver testified that he thought it was safe to back when he saw Milloway standing away from the truck, and that, although there was other evidence by which the jury might well have found for plaintiff without the instruction on the safety order, the jury requested a re-reading of the order, and the order converted negligence from a question of fact to a presumption of law against the defendant.

Petition for rehearing denied.