Richardson v. Ham

TRAYNOR, J.

Defendants, members of a construction contracting partnership, were engaged in earth moving operations in the development of a new subdivision located on top of a mesa in San Diego County. In their work they used two 26-ton Allis-Chalmers bulldozers, which were operated by two of their employees. The bulldozers did not have electrical ignition systems, and they could be started by pushing the compression lever in and stepping on the starter. The engine was stopped by pulling the compression lever out. They were equipped with fluid drives and could be started in gear, in which case they would commence to move as soon as the engine started. No locks were supplied with the bulldozers by the manufacturer, but the local dealer had improvised a lock that would prevent starting. It consisted of a metal sleeve welded to a padlock that locked around the starter rod thereby preventing the starter from operating. The lock provided by the dealer for one of the bulldozers was lost, and defendants improvised a substitute. At the close of the working day on Saturday, July 5, 1952, the operators of the bulldozers parked them near one another on top of the mesa. One of them was locked by the dealer’s lock, and there is evidence that as to the other, only the padlock, but not the sleeve of the improvised lock, was put around the starter rod. The padlock alone would not prevent the starter from operating. The following evening three young men, aged 17, 18, and 20, after drinking intoxicants, decided to go for a drive with the wife of one of them. While driving, one of them mentioned having seen the bulldozers, and they decided to go to the mesa for the purpose of racing them. On their arrival, two of the young men left the car and attempted to start the bulldozers. They were unable to start the bulldozer equipped with the dealer’s lock but succeeded in starting the other bulldozer. They drove it around the mesa for 15 to 30 minutes causing considerable damage, and then, being unable to stop it, headed it toward a canyon to the east of the mesa and abandoned it. It went off the edge of the mesa, down the hill, across a freeway, and traveled for about a mile before it was halted by a retaining wall and a utility pole. During the course of its journey it traveled through a house and seriously injured the occupants. It also collided with a house-trailer and an automobile causing further property damage and personal injuries. Plaintiffs, whose persons or property were in the path of the bulldozer, brought these actions for damages against defendants alleging that they were negligent in leaving the bulldozer unattended and unlocked. The actions were consolidated for trial, and the jury returned verdicts for defendants. The trial court granted motions for a new trial on the grounds of insufficiency of the evidence and misconduct of the jury. Defendants appeal.

“In passing upon a motion for a new trial based upon the insufficiency of the evidence, it is the exclusive province of the trial court to judge the credibility of the witnesses, determine the probative force of testimony, and weigh the evidence [citations]. In considering the sufficiency of the evidence upon such motion the court may draw inferences opposed to those drawn at the trial [citation], and where the only conflicts consist of inferences deduced from uncontradicted probative facts, the court may resolve such conflicts in determining whether the case should be retried [citation]. It is only where it can be said as a matter of law that there is no substantial evidence to support a contrary judgment that an appellate court will reverse the order of the trial court.” (Brooks v. Metropolitan Life Ins. Co., 27 Cal.2d 305, 307 [163 P.2d 689]; see also Ballard v. Pacific Greyhound Lines, 28 Cal.2d 357, 359 [170 P.2d 465]; Mazzotta v. Los Angeles Ry. Corp., 25 Cal.2d 165, 168 [153 P.2d 338]; Martin v. Smith, 103 Cal.App.2d 894, 897-898 [230 P.2d 679], and cases cited; 3 Witkin, California Procedure 2062.)

, Defendants contend that there is no substantial evidence that would support a judgment against them. They rely on the recent decision of this court in Richards v. Stanley, 43 Cal.2d 60 [271 P.2d 23], holding that, in the absence of special circumstances, the duty of an owner of an automobile to exercise reasonable care in the management thereof does not include a duty to remove the ignition key to protect persons on the highway from the negligent driving of a thief. Since, however, the kinds of foreseeable intervening conduct by third parties as well as the risks created by such conduct in this case are materially different from those considered in the Richards case, that case is not controlling here.

Automobiles do not arouse curiosity, and ordinarily the only appreciable risk that they will be set in motion if they are left unattended arises from the possibility of their being stolen. The record in the present case, on the other hand, shows that defendants’ bulldozers aroused curiosity and attracted spectators, while they were in operation as well as while they were parked for the night. Moreover, curious persons had been known to climb on them, and it could reasonably be inferred that they were attractive to children when left unattended at the end of the working day. The evidence is therefore sufficient to justify the conclusion that there was a reasonably foreseeable risk that defendants’ bulldozers might be tampered with when left unattended.

Given this foreseeable risk of intermeddling, the question is presented whether defendants were under a duty to exercise reasonable care to prevent intermeddlers from putting their bulldozers in operation. In the Richards case it was concluded that even if theft was reasonably to be foreseen, the owner was under no duty to persons on the highway to exercise reasonable care to keep his car out of the hands of a thief. It was pointed out that the owner will ordinarily have no reason to foresee that a thief will be an incompetent driver, that the risk of negligent driving arising from possible theft is less than the risk that the owner might intentionally create without negligence by lending his car to another, and that it would be anomalous to impose greater liability when the car was being driven by a thief than that provided by statute when the owner voluntarily entrusts his car to another. The risks arising from intermeddling with bulldozers, however, are entirely different from those arising from the driving of an automobile by a thief. Bulldozers are relatively uncommon, and curious children or others attracted by them ordinarily will not know how to operate them. An intermeddler who starts a bulldozer accidentally or otherwise may not be able to stop it, and the potentialities of harm from a 26-ton bulldozer in uncontrolled motion are enormous, particularly when it is left on top of a mesa from which it can escape and injure persons and property located below. The extreme danger created by a bulldozer in uncontrolled motion and the foreseeable risk of intermeddling fully justify imposing a duty on the owner to exercise reasonable care to protect third parties from injuries arising from its operation by intermeddlers. (See Jensen v. Minard, ante, pp. 325, 327, 328 [282 P.2d 7]; Warner v. Santa Catalina Island Co., ante, pp. 310, 317 [282 P.2d 12], and cases cited.)

In the absence of an effective lock the bulldozer engine could be started by pushing in a lever and stepping on the starter. Moreover, the engine could be started with the bulldozer in gear, and if so started, the bulldozer would commence to move immediately. Although this risk could be avoided by the use of a simple but effective lock, there is evidence that no such lock was used. Accordingly, there is substantial evidence that defendants did not exercise reasonable care to prevent intermeddlers from setting their bulldozer in motion.

It is contended, however, that even if defendants were under a duty to protect plaintiffs from injuries from operation of the bulldozer caused by ordinary intermeddlers, they were not under a duty to protect plaintiffs from intermeddlers who deliberately undertook to operate the bulldozer, or, in other words, that the intentional misconduct of the young-men constituted a superseding cause of plaintiffs’ injuries. (See Rest. Torts, § 448.) It is settled, however, that “If the realizable likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, Such an act whether innocent, negligent, intentionally tortious or criminal does not prevent the actor from being liable for harm caused thereby.” (Rest. Torts, § 449; McEvoy v. American Pool Corp., 32 Cal.2d 295, 298-299 [195 P.2d 783]; Benton v. Sloss, 38 Cal.2d 399, 405 [240 P.2d 575].) The possibility of the intentional, wrongful misconduct that occurred in this case was not so remote as not to constitute “one of the hazards” that would justify the .conclusion that defendants’ failure to lock the bulldozer was negligent. Accordingly, defendants’ duty to protect plaintiffs from injuries caused by the uncontrolled and unauthorized operation of their bulldozer included a duty to protect plaintiffs from the intentional misconduct of the young men, and such misconduct did not therefore constitute a superseding cause of plaintiffs’ harm.

Since the evidence was sufficient to support the trial court’s granting of plaintiffs’ motions for a new trial, it is unnecessary to decide whether the orders might also be sustained on the ground of the alleged misconduct of the jury.

The orders are affirmed.

Gibson, C. J., Shenk, J., and Schauer, J., concurred.