Smith v. Dhy-Dynamic Co.

This action was brought by plaintiff, Dan Smith, against defendant Dhy-Dynamic Co., a corporation, to recover damages for the personal injuries plaintiff sustained while working in the course and scope of his employment with Peter Kiewit Sons’ Co. Thereafter, the Aetna Casualty & Surety Company, the workmen’s compensation carrier for plaintiff’s employer, intervened to recover workmen’s compensation benefits and medical expenses paid to plaintiff as the result of the injury. Plaintiff and intervener appeal from the judgment entered on jury verdicts in favor of defendant.

Plaintiff was seriously injured on June 24, 1966, when a machine, known as a Dynahoe, fell into the ditch in which he was working; the ditch, a drain inlet for the California Aqueduct, was about 150 feet long and about 7 feet or 8 feet deep; a concrete pipe 48 inches in diameter had been laid in the inlet; the machine, a combination front-end loader and backhoe, was manufactured by defendant and had been sold to plaintiff’s employer.

At the time of the accident the drain inlet was being back-filled, and plaintiff and a fellow-employee, J. C. Adams, were working on the north side of the concrete pipe;…