Connell v. Harris

The defendants appeal from the judgment and from an order denying their motion for a new trial.

The plaintiff brought this action to recover damages for injuries caused to his automobile in a collision with the rear end of a wagon belonging to defendants. The collision occurred at night on the Washington Street Boulevard in the county of Los Angeles while both vehicles were going westerly from Los Angeles and toward Santa Monica. The wagon of the defendants, loaded with heavy timbers, carried no light, except a white light attached to said timbers. According to the allegations of the complaint, which are not denied in the answer of the defendants, an ordinance of the county of Los Angeles in force at the time of the accident provided that it was unlawful for any person to drive any vehicle upon any highway or public place during the period from one hour after sunset to one hour before sunrise, without having attached to the left side of such vehicle “a lamp showing a white light visible in the direction toward which said vehicle is proceeding and a red light visible in the reverse direction, or unless there is attached to the front of such vehicle a lamp showing a white light visible in the direction toward which

It is alleged in the complaint that the defendants at said time did not have “any light of any kind or character upon the rear part or portion of said wagon as required by a certain ordinance of the county of Los Angeles hereinafter referred to, by reason of which negligence on the part of said defendant” the injuries described were caused. The evidence shows that the plaintiff’s driver was misled by the white light on the rear of the wagon of the defendants, as well as by the absence of any red light. According to the ordinance, a white light indicated an approaching vehicle, whereas a red light would have truly indicated that the vehicle was moving westerly. This was especially important not only as showing the direction in which the wagon was moving, but also as indicating which side of the road it was entitled to use.

The wagon was the property of defendants, but they denied that at the time of the collision it was in their possession or under their control. They had bought these timbers in Los Angeles. Then they had approached one Olivares, a teamster, and agreed with him that he should haul the timbers to Santa Monica for six dollars. As the wagon of Olivares was too small to properly carry the timbers, a larger wagon of the defendants was used, together with the horses of Olivares. The defendant Albert Harris went with Olivares and showed him the way to the yards where the timbers were and helped to load them and then rode with Olivares for some distance out Washington Street. Olivares testified as follows: “Harris rode a ways, then took the car and went home. When he left he told me to take the timbers home, and I took them there because he told me so. ’ ’ Harris and Olivares acted together in procuring the white-light lantern and fastening it to the timbers.

Counsel for defendants, after first arguing that there is not in the complaint any sufficient allegation of negligence, next contend! that if the alleged failure to have such lights as were required by the ordinance did constitute negligence, the proof failed because the plaintiff did not introduce any evidence of the existence of the ordinance. To this the plaintiff’s counsel responds that the pleading of the ordinance

In the decision above mentioned the supreme court in ruling that the ordinance was properly admitted in evidence, said: “The cause of action here alleged was not a violation of the ordinance, but the negligence of the defendant, and the ordinance was simply evidence offered to show such negligence. Under our system of pleading, it is both unnecessary and improper to plead the evidence relied on to establish the ultimate facts essential to a cause of action.” It was further stated, following a Missouri decision, that where the suit is based on an ordinance it should be pleaded, but that where the ordinance is merely sought to be introduced as an evidentiary fact, it need not be pleaded, since it is necessary to plead only the ultimate and substantial facts necessary to state the cause of action. The court further says: Some of the cases cited by counsel for defendant were cases where it was not attempted to allege any negligence other than the violation of an ordinance; and the ordinance was not well pleaded. If the allegation as to the ordinance was stricken out, nothing remained to show negligence. Of these, Lake Erie & W. R. Co. v. Mikesell, 23 Ind. App. 395 , [ 55 N. E. 488 ], is an example. In such eases it is held that the ordinance must be properly pleaded, and that the complaint should also aver that the ordinance was in force at the time of the occurrence of the act complained of. Such ruling does not appear to us to be inconsistent with our conclusion.”

Our attention has not been called to any decision other than Cragg v. Los Angeles Trust Co., 154 Cal. 663 , [16 Ann. Cas. 1061, 98 Pac. 1063 ], as authority for the proposition that negligence cannot be specially predicated upon the violation of an ordinance, and we see no substantial reason why it may not be done. Our conclusion is that the failure of defendants to deny the existence of said ordinance admitted the fact of its existence and evidence thereof was not necessary. It may be noted here that the complaint in this action specifically alleges that said ordinance was in full force and effect at the time of the accident. “It is the settled rule in this state, under the doctrine of the Californian cases above cited, that the violator of a local ordinance is guilty of negligence per se, if such violation contributes proximately to the accident.” (Stein v. United Railroads, 159 Cal. 368 , 372, [ 113 Pac. 663 ].)

The defendants contend that they were not in possession of the wagon or timbers at the time that the injuries to plaintiff’s automobile were received. We concede the general doctrine stated by defendant’s counsel, that the owner of property is not responsible for negligence in the use of that property by an independent contractor to whose possession it has been surrendered for some lawful purpose. In order to constitute such third person an independent contractor it is necessary that he shall have control of the manner in which the contract work shall be done and be responsible only for the results of the work. If the employer retains the right to direct the manner in which the work shall be done, the employed person becomes his servant and the employer remains responsible for negligence of the servant. Upon the facts above stated we conclude that the defendants, after making their contract with Olivares, retained some control

Finally, the superior court found upon the evidence that the violation of the alleged ordinance was the proximate cause of the injury in this case, and that the injuries were not caused by the negligence of plaintiff. We think the evidence adequately supports those findings.

The judgment and the order denying a new trial are affirmed.

James, J., and Shaw, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on January 15, 1914.