Citations
- 276 Cal. App. 2d 436
Full opinion text
derson ; an engineer employed by the State of California on a freeway construction project, was killed at the jobsite when a? truck loaded with asphalt backed up and ran over him.
Anderson’s widow and two minor children brought this wrongful death action against (1) the truck driver, Sisk, and his partner, doing business as G & R Trucking Company (hereafter “G & R ”), (2) L. C. Smith Construction Company (hereafter “Smith”), the general paving contractor on the project, under a written contract with the State of California, and (3) W. S. P. Trucking Company (hereafter “W. S. P.”), to whom Smith subcontracted the hauling of asphalt to the project.
Plaintiffs appeal following a jury verdict in favor of all defendants, raising only points based upon the giving of or refusal to give certain jury instructions.
Smith’s contract with the state provides in part: “Contractor shall give his personal attention to the fulfillment of the contract and shall keep work under his control. No subcontractors will be recognized as such, and all persons engaged in the work of the construction will be considered as employees of the contractor, and he will be held responsible for their work, which shall be subject to the provisions of the contract and specifications. ’ ’
Smith notified W.S.P. that it would require six trucks and drivers to haul asphalt to the jobsite on the day of the accident. W.S.P did not itself have enough units available. It arranged with G & R for it to furnish one truck and driver.
W.SiP was paid $14.87 per hour by Smith for each unit furnished. W.S.P. would in turn pay a subhauler, such as G & R, the .same amount per hour less 5 percent broker’s fee or commission. G & R paid for its own driver, gas, oil, service and maintenance.
Smith dealt only with W.S.P in arranging for the hauling of asphalt. It had no financial dealings with G & R or any other subhauler engaged by W.S.P.
W.S.P.’s president testified that all of their trucks were equipped with automatic backup warning devices, which cost $26 each. No inquiry was made by his company as to whether G & R’s truck was so equipped.
One of the duties of the deceased in his employment by the' state was to establish and mark a chalk line for the paving machine to follow. He was engaged in this duty at the time he was struck by the G & R truck.
The paving operation required trucks to dump loads of asphalt into the hopper on the front part of a paving machine. They would pull in some distance ahead, stop, and then back up to the paving machine, which would be moving slowly forward and putting down a layer of asphalt.
Was the Safety Order. Applicable to G