VAN ARSDALE v. HOLLINGER (1967)

At about 9:00 a.m. on April 11, 1961 plaintiff was injured in the scope of his employment while performing certain street repair work for the George Savala Paving Company.   A car driven by defendant Hollinger struck him while he was applying sand to a street surface.   Plaintiff's work consisted of eradicating old lane lines which existed in the eastbound lanes of Century Boulevard at and near the intersection of Century and Sepulveda Boulevards.   The City of Los Angeles had contracted with the George Savala Paving Company, plaintiff's employer, to resurface the streets.

At the time of the accident two construction inspectors employed by the city were in the immediate vicinity of plaintiff and his foreman, Mr. Meehan.   Mr. Meehan testified that he and the inspector decided to eradicate the existing lane lines by applying a coat of tar and then putting sand on the tar.   At the time of the accident there were three eastbound lanes on Century Boulevard;  the most northerly will be referred to as lane two, and the most southerly lane will be referred to as lane three.   Plaintiff and his foreman had placed certain sawhorse type barricades on Century Boulevard between lanes one and two, and longer barricades at lanes two and three to prevent eastbound traffic from entering lanes two and three.   Thus when plaintiff began work he was completely enclosed by barricades.   Both plaintiff and his foreman were working and the city inspectors were nearby.   Plaintiff never noticed that the barricades closing off lanes two and three were in any different position than when he started.   However, as he worked easterly, he went beyond the line of sawhorses and was outside (i.e., beyond) the barricade at the time of the accident.   Plaintiff was in a bent over position applying sand when Miss Hollinger, who was traveling southbound on Sepulveda Boulevard, turned left (east) into lane two on Century Boulevard.   There was a truck going east ahead of Miss Hollinger, and their speed was 15 to 20 miles per hour.   There is a conflict on whether plaintiff ran in front of the truck or the truck, without warning, swerved left when Miss Hollinger struck plaintiff.   Miss Hollinger could not see over the truck or on either side of it.   After the accident it was noted that lanes one and three were barricaded and lane two was open for traffic.

In the contract between the city and Savala, the contractor agreed to furnish and maintain fences, barriers, lights, and warning signs to give the public warning of dangerous conditions;  the contractor agreed that if regular measures were not adequate to safely control traffic, they would provide flagmen wearing red coats and holding red flags or signs to control traffic.   If the contractor failed to so provide, the city, at its option, could so provide at the contractor's expense.   The contractor promised to provide any additional safety devices besides the prescribed ones that would be used by a diligent and prudent contractor.

At the time of the accident there were no flagmen provided, the barricades were owned by Savala and plaintiff was wearing a red and black shirt with grey pants and was not wearing a flaming red or orange jacket.

During the course of the work, the city inspector would tell Mr. Meehan to correct whatever was not in accord with plans and specifications and could also correct the placing of barricades if improperly placed.   A city inspector was always on the job and the repair job was to be done according to plans and specifications of the city.

Plaintiff got his instructions from his foreman.   On the morning of the accident Meehan was talking with the inspectors “about whether we had painted out enough of the lines or not.”   Inspector Lindh testified that he didn't tell the Savala employees how to do things.   Mr. Hurdle, the other construction inspector, testified that it was his job to see that work was done according to plans and specifications.

This appeal follows a jury verdict in favor of defendants Joan Hollinger and the city, and against plaintiff Van Arsdale and the intervenor, Employees Liability Assurance Corporation, the workmen's compensation carrier for Savala.   By special interrogatories defendant Hollinger was found not negligent, the city was found not negligent, nor was it found to be an employer, plaintiff was found not contributorily negligent, and Savala, plaintiff's employer, was found negligent.

The intervenor has not appealed.   Plaintiff appeals solely on the refusal of the trial court to give certain instructions.

 Insofar as the appeal from the judgment in favor of defendant Hollinger is concerned, plaintiff argues that the trial court improperly refused an instruction on Vehicle Code, section 21703, which deals with following too closely.   However, at plaintiff's request the court instructed:

“It is the duty of the driver of any vehicle using a public street or highway to exercise ordinary care to avoid placing himself or another person in danger;  to use like care to avoid an accident from which injury might result;  to be vigilant at all times, keeping a lookout for traffic and other conditions to be reasonably anticipated;  and to keep the vehicle under such control that, to avoid a collision with any person or with any other object, he can stop as quickly as might be required of him by eventualities that would be anticipated by an ordinarily prudent driver in like position.”

 When other instructions sufficiently cover a statutory duty it is not necessary to instruct in the words of the statute.  (See Hughes v. MacDonald (1955) 133 Cal.App.2d 74, 81, 283 P.2d 360.)

Insofar as the appeal from the judgment in favor of defendant city is concerned, plaintiff makes the following contentions:

(1) That the trial court improperly refused to instruct the jury that the defendant city was an employer as a matter of law and, therefore, liable for sundry violations of safety rules;

(2) That the trial court improperly refused to instruct the jury on the liability of defendant city as an invitor;

(3) That the trial court improperly refused to instruct the jury on the liability of the city to warn of dangers not obvious;  and

(4) That the trial court improperly refused to instruct the jury that, under section 234 of the Charter of the City of Los Angeles, the city was under a non-delegable duty to exercise supervision and control over the work in question.

Since we conclude that the last contention is valid, it is neither necessary nor proper for us to discuss the other three contentions.   Assuming, without deciding, that the other contentions are correct, it is unnecessary for the jury to be instructed on the hypothetical duty of the city in cases in which section 234 does not apply;  to do so would only confuse and not aid the jury in its deliberations.

 In Snyder v. Southern Cal. Edison Co. (1955) 44 Cal.2d 793, 799, 285 P.2d 912, 915, the court said, “Where an activity involving possible danger to the public is carried on under public franchise or authority the one engaging in the activity may not delegate to an independent contractor the duties or liabilities imposed on him by the public authority.”   Therefore, the court committed error in its refusal to give any of the three offered instructions that reflect the law of the Snyder case and the law of sections 418 and 417 of the Restatement of the Law of Torts (dealing with the duty of municipalities entrusting work to an independent contractor).   Defendants' contention that the city can delegate street construction work is not in point.   Plaintiff does not assert that the city is precluded from delegating construction work to an independent contractor;  plaintiff merely asserts that the city cannot delegate the duty of supervision of that work.

Since it is undisputed that the injury occurred on a street maintained by defendant city, and in the course of maintenance work on such a street, it follows that, on a retrial, the court should instruct the jury in effect that the city had a non-delegable duty to plaintiff to use reasonable care to maintain the street on which he was working in a reasonably safe condition for his use, to the same extent as though the city had retained in its own hands the repair of the street.   No instructions on other theories of liability will be appropriate.

The judgment in favor of defendant Hollinger is affirmed;  the judgment in favor of defendant City of Los Angeles is reversed insofar as plaintiff Van Arsdale is concerned.

KINGLSEY, Associate Justice.

FILES, P.J., and JEFFERSON, J., concur.