Milosevich v. Pacific Electric Railway Co.

Plaintiffs are the surviving widow and minor children of Vojko Milosevich, deceased, and as such instituted this action against the defendant to recover damages for the death of the said Vojko Milosevich. The action was tried by a jury and a verdict rendered for $5,000 in plaintiff’s favor,

Vojko Milosevich was in the employ of the Los Angeles Gas and Electric Corporation, and while in the employ of this company, and while acting within the course and scope of said employment, was struck and killed by an electric car owned and operated by defendant. The complaint alleges that the defendant was negligent in the operation of its car, and due to such negligence the deceased met his death. The defendant, in its answer, denied negligence on its part, and alleged that the deceased was guilty of contributory negligence which was the proximate cause of his death. In addition to its original answer, the defendant, by leave of court, filed an amendment thereto, in which amendment defendant alleged, among other things, that through a proceeding instituted by plaintiff, before the Industrial Accident Commission of the state of California, an award of compensation was made, by reason of the death of said deceased, by said commission in favor of plaintiffs and against the Los Angeles Gas and Electric Corporation, the employer of deceased, in the sum of $3,134.04, which sum said employer became obligated and liable to pay, and, furthermore, that said employer became liable and obligated to pay the additional sum of $103.60' for the reasonable and necessary medical and hospital expense of said deceased caused by the injury resulting in his death. These two amounts, aggregating $3,237.64, it is alleged in said amendment, the Los Angeles Gas and Electric 'Corporation will be entitled to receive and have paid to it out of any judgment which may be recovered in this action, and that plaintiffs are prosecuting this action as the trustee of the said employer to the extent of said sum of $3,237.64. It is further alleged in said amendment to the answer that the death of said deceased was due to the fault and negligence of the said Los Angeles Gas and Electric Corporation, the employer of deceased, and that the injuries and death of said deceased, and the damages, if any, sustained by plaintiffs, were directly and proximately contributed to by the fault, carelessness, and negligence of said employer, and its failure to exercise ordinary care, caution, or prudence for the safety of the said deceased while engaged in said employment. .

Appellant bases its appeal and relies for a reversal of the judgment in this case upon two grounds: First, error on the part of the court in refusing to permit defendant to show that the Los Angeles Gas and Electric Corporation was guilty of contributory negligence as the proximate cause of the death of the deceased, and, secondly, that the deceased himself was guilty of contributory negligence.

First. The first ground advanced by appellant in support of its appeal, that is, the alleged error of the court in refusing to permit defendant to show as a defense to this action the contributory negligence of the employer of the deceased, involves a consideration of the Workmen’s Compensation Insurance and Safety Act of 1917, as amended in 1919 (Stats, of 1919, pp. 920 and 921), and particularly of section 26 thereof. This section reads as follows: “26. ‘Employee.' Suits for damages from person other than employer. If employer joins in suit. The term employee, ’ as used in this section, shall include the person injured and any other person in whom a claim may arise by reason of the injury or death of such injured person. The death of the employee, or of any other person, shall not abate any right of action established by this section. The claim of an employee for compensation shall not affect his right of action for damages arising out of injury or death against any person other than the employer; and any employer having paid, or having become obligated to pay, compensation, may likewise

It will be observed that said section 26 provides, among other things, that “The court shall, on application, allow as a first lien against any judgment recovered by the employee, the amount of the employer’s expenditure for compensation.” Prom this provision of section 26 it follows that in this action, at the proper time, upon application to the court, the employer of the deceased, the Los Angeles Gas and Electric Corporation, will be entitled to have allowed to it as a

Section 1714 of the Civil Code provides for the defense of contributory negligence. Prior to the enactment of the Workmen’s Compensation legislation, this defense was available to the defendant in all actions or proceedings instituted for the purposes of recovering damages growing out of the negligence of the defendant. It has been held that the defense of contributory negligence is available to a defendant, even in cases where the party alleged to be guilty thereof was not a party to said action, but only had a beneficial interest therein. Such, for example, where the administrator of the estate of a child, whose death was caused by the negligence of the defendant, was suing the latter for damages, the contributory negligence of the father, who, as an heir of his child, would share in the proceeds of any judgment recovered in said action, was a proper defense thereto. (Wolf v. Lake Erie & Western R. R. Co., 55 Ohio St. 517 [ 36 L. R. A. 812 , 45 N. E. 708 ] ; Cleveland etc. R. Co. v. Bossert, 44 Ind. App. 245 [ 87 N. E. 158 ]; Chicago City Ry. Co. v. McKeon, 143 Ill. App. 598 .) Therefore, by virtue of said section 1714 of the Civil Code, this defense, in so far as it affects the rights of the employer, the Los Angeles Gas and Electric Corporation, is available to the defendant in this action unless there is some provision contained in the Workmen’s Compensation and Insurance Act of 1917, as amended in 1919, which either directly or indirectly deprived the defendant of the right to interpose the same. By the terms of this act, it is directly provided that in any proceeding or action instituted by the employee against the employer to recover the compensation provided for by said act, “it shall not be a defense to the employer that the employee may be guilty of contributory negligence.” (Subd. B, sec. 29.) [1] This provision of the law, however, is limited to such proceedings or actions as may be brought by the employee against the employer, and has no reference to an action

We are, therefore, of the opinion that by the terms of the act of 1917, as amended in 1919, the defendant was precluded from interposing as a defense in this action the contributory negligence of the employer, and that it was not error on the part of the court to sustain the objection to the introduction of evidence in support of this defense.

This precise question has never, to our knowledge, been before the appellate courts of this state, and we have been able to find but pro cases in which a question at all similar to the one herein involved has been before any of the courts of this country. In the case of Otis Elevator Co. v. Miller & Paine, 240 Fed. 376 [ 153 C. C. A. 302 ], the United States circuit court of appeals held that in an action by the employer against a third person, brought to recover the amount paid by the employer to the dependents of the employee, under the Workmen’s Compensation Act of the state of Nebraska, that the contributory negligence of the employer was no defense in such an action. This case was followed by the supreme court of Iowa in the action of the Fidelity Casualty Co. v. Cedar Valley Electric Co., 187 Iowa, 1014 [ 174 N. W. 709 ]. These cases were decided upon the ground that the employer, upon making payment to the employee or his dependents, by the express terms of the statute became subrogated to the rights of the employee, and, therefore, the employer, in his action against the negligent third person, stood in the shoes, so to speak, of the employee, and no defense would be available in such an action that could not be pleaded against the employee in case the action was being prosecuted by the latter. [3] Defendant seeks to avoid the effect of these decisions by calling our attention to the fact that the statute of 1917, as amended in 1919, contains no provision whereby the employer became subrogated to the rights of the employee. Under the Workmen’s Compensation Act of 1913 (Stats. 913, p. 279) of this

On the other hand, counsel for the defendant has called to our attention the two cases of Corey & Son v. France, 1 K. B. 1911, page 114, and Canadian P. R. Co. v. Alberta Clay Products, Ltd., 8 B. W. C. C. 645. The first of these two cases was decided under the Workmen’s Compensation Act of England, and the second under the Canadian statute. The latter statute was taken from the English act and there is no essential difference in the two statutes upon the subject under consideration. Neither the English nor Canadian act contains any provision whereby the employer is subrogated to the rights of the employee, nor do either of said acts provide, as does that of our own state, that in an action instituted by the employee against the negligent third person, the amount paid by the employer to the employee shall be inadmissible in evidence. As these statutes differ so materially from our own statute, the decisions of the English and Canadian courts construing them are but slight as

Second. It is further insisted by the defendant that the evidence shows as a matter of law that the deceased was guilty of contributory negligence which was the proximate cause of his death.

[4] Negligence as a rule, is a question of fact for the jury and it is only when but one conclusion can reasonably be reached from the evidence that it becomes a question of law for the court. (Herbert v. Southern Pac. Co., 121 Cal. 227 [ 53 Pac. 651 ].) “If one sensible and impartial mgn might decide that plaintiff had exercised ordinary care, and another equally sensible and impartial man that he had not exercised such care, it must be left to the jury.” (Herbert v. Southern Pac. Co., supra [ 53 Pac. 651 .)

The defendant concedes that it was negligent in the operation of the car which caused the death of Milosevich. This negligence consisted, as conceded by defendant, in driving the car at an excessive rate of speed, in the failure of the motorman to ring his bell when close to the men at work in the street, and in his failure to observe the deceased at his work near the car tracks. But defendant contends that “surely a car coming along this track at twenty miles an hour could have been seen and heard ... if Milosevich had looked or listened,” and that failing to either look or listen was such negligence on his part as would bar any recovery. The evidence shows that the deceased, on the occasion of the injury, was working with a number of other men for the Los Angeles Gas and Electric Corporation. This corporation was engaged in laying a pipe-line in the street over which defendant was operating a single-track electric car line. The trench in which the pipe was to be laid was parallel with the car track and about four feet from the north rail of said track. The line of pipe ran along the southerly edge of the trench and was ten inches in diameter. This would leave hbout three feet between the north rail of track and the line of pipe. The street-car “overhung” the rail twenty-four inches. Accordingly, there was only about one foot between the southerly edge of the pipe and the car as it passed along the track. The deceased and three others were at work wrapping the pipe with burlap, preparatory

Judgment affirmed.

I concur in the judgment. I am not definitely satisfied that in an action of this kind, prosecuted by the dependent survivors of an employee as sole plaintiffs, against a person other than the employer (an action wherein, as the statute provides, the amount of compensation paid by the employer is not permitted to be shown), the employer will in every case be entitled to apply for and obtain an order establishing a lien in his favor for the amount of compensation paid by him. It will possibly be a defense to such application, that the employer’s contributory negligence was a concurring proximate cause of the damage suffered. But if so, that will be a question between the plaintiffs and the employer. In order to make sure that the right of action in a case like this shall not be affected by any compensation claim against the employer, the statute has apparently excluded from the trial of the controversy between the plaintiffs and the defendant herein any consideration of the amount of compensation paid by the employer. The amount being thus excluded, the plea of contributory negligence of the employer could not affect the amount of the verdict, or be used at all unless to defeat the entire cause of action of the plaintiffs. But manifestly the legislature did not intend that such cause of action shall be thus destroyed.

Houser, J., concurred.

A petition by appellants to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 13, 1924.

All the Justices concurred.