Tankersley v. Low & Watson Construction Co.

Citations: 166 Cal. App. 2d 815; 333 P.2d 765; 1959 Cal. App. LEXIS 2550Docket: Civ. 23130

Court: California Court of Appeal; January 7, 1959; California; State Appellate Court

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In the case of Tankersley v. Low. Watson Construction Company, the California Court of Appeals addressed an appeal from a judgment awarding the plaintiff, Robert A. Tankersley, $50,000 for personal injuries sustained due to alleged negligence by the defendant, Low. Watson Construction Company. The essential facts indicate that the defendant was contracted by the California Division of Highways to perform road construction work on Topanga Canyon Road, which involved closing a 0.6-mile section to traffic during specific hours on workdays.

On May 18, 1956, the construction project was nearing completion, with plans to open the road later that day. Tankersley, a highway patrolman, was ordered to patrol the area and stopped his motorcycle near a building used by the construction superintendent. Prior to this, he had observed a cable barricade across the road to prevent access. On the morning of the incident, while conversing with the superintendent, Tankersley inquired about any cables and was told there were none. However, he was injured after encountering a cable that was part of the barricade system, which was designed to be compliant with safety regulations approved by the Board of Public Works.

The case highlights conflicting evidence regarding the visibility and presence of warning signs and the position of the cable in relation to the signs, as well as the adequacy of the barricading method employed by the defendant. Tankersley's assertion that he was given clearance to proceed was not corroborated by other witnesses.

The plaintiff, after a conversation, drove his motorcycle onto the highway, where he collided with a cable, shearing off one of the support posts and coming to rest approximately 40 feet from the point of impact. There was conflicting evidence regarding the visibility of the cable; the plaintiff claimed he was unaware of its presence. The court instructed the jury on section 465.7 of the Vehicle Code, which establishes negligence for violations, and included guidelines from the "Manual Of Warning Signs, Lights, And Devices For Use In Performance Of Work Upon Highways." The defendant argued that section 465.7 did not apply to its duties in closing the highway, claiming that only sections 124-125 of the Streets and Highways Code were relevant, which authorize the Department of Public Works to restrict highway use with appropriate barriers. The court found no merit in the defendant’s argument, stating that the provisions of both codes are complementary and serve to ensure that traffic is adequately warned of construction hazards. Section 465.7 mandates that contractors follow specific guidelines for warnings, and failure to comply could result in liability if it causes injury. The court determined that section 465.7 was applicable to the case, rejecting the defendant's assertion that the statute was intended solely for those approaching the closed area, emphasizing that the plaintiff was still entitled to protection under the statute.

The Department of Public Works manual mandates that barriers or barricades facing traffic must have a vertical face of at least five and one-half inches and be painted either all yellow or with yellow and black stripes to ensure visibility and prevent accidents. These requirements apply to all barriers to protect highway users, including those who may enter between signs or fail to notice warnings. The plaintiff is considered a protected individual under this regulation.

The defendant argued that even if the cable constituted a barrier, its non-compliance with the statute was not a proximate cause of the accident. However, this argument was deemed irrelevant, as the violation of a statute must be a proximate cause to be significant in this context. The plaintiff's awareness of the road closure does not negate the possibility that he would have seen a properly constructed barrier.

The jury determined that the cable was indeed a barrier obstructing the highway and did not meet statutory specifications, which undermined the defendant's claim of compliance. The defendant's request for jury instructions regarding the relationship of licensor and licensee was denied by the court, which found no supporting evidence for such instructions. The plaintiff's intended use of the closed highway was lawful as he acted in his official capacity as a state officer, and the accident resulted from the barrier erected by the defendant, not from any defect in the premises under the defendant's control. Additionally, the plaintiff was allowed to testify about statements made by the defendant's construction superintendent regarding his movement from the construction site to the highway.

Defendant contends it was erroneous to admit testimony regarding Cowan's authority to permit access over a closed road, but since the evidence was accepted without objection and no motion to strike was made, this claim of error cannot be raised. The court denied the defendant's request for jury instruction based on BAJI 140, deeming it argumentative and a commonplace statement, which was not an error. A request for instruction under section 510 of the Vehicle Code regarding basic speed law was also made; although the defendant was entitled to this instruction, the court’s refusal did not prejudice the defendant. Evidence indicated the plaintiff was traveling at approximately 26 miles per hour before an accident, but the impact suggested he may have been driving faster. The jury needed to determine if his speed was reasonable under the circumstances. The court instructed the jury on negligence and the requisite caution, emphasizing that the amount of caution varies with the perceived danger. The plaintiff was aware of the road closure and navigated between barricades with minimal space, indicating a lack of ordinary care. The court's instructions sufficiently conveyed the duty of care expected of the plaintiff, and it is unlikely that a different jury verdict would have resulted from the refused instruction. The judgment is affirmed.

The California Department of Public Works, under Section 465.7 of the California Vehicle Code, has established specifications for signs, lights, and devices that can be used by entities performing work that disrupts safe traffic flow on highways. Barriers or barricades must have a vertical face of at least 5.5 inches when facing traffic. If constructed with multiple cross or face members, the total vertical face must be no less than 9 inches, with no single member under 4 inches. Barriers must be painted either all yellow or feature alternating yellow and black stripes at a 45 to 60-degree angle, with stripe widths of at least 3 inches; the yellow stripes may be wider than the black ones. Section 465.7 mandates that only specified signs, lights, and devices can be used on highways from July 1, 1942, to ensure adequate warning of construction activities. The document also notes that there is no dispute regarding the rights and liabilities if an injury occurs due to a defect in the highway under construction, and it emphasizes that individuals are expected to notice clearly visible objects or sounds if exercising ordinary care.