Briggs

The state appeals from a judgment and certain orders entered after a jury verdict awarding $365,000 damages for wrongful death to the widow and children (hereafter collectively referred to as Briggs), and Aetna Casualty and Surety Company (hereafter Aetna), the workmen’s compensation carrier for the employer of Charles R. Briggs, who was killed in a head-on collision after swerving into the oncoming traffic on a two-lane highway to avoid a mud slide that blocked his lane. The major contentions on appeal are the sufficiency of the evidence as to the state’s constructive notice of the dangerous condition on the highway and the propriety of the court’s instructions on contributory negligence as a question of fact and the state’s duty with respect to adjacent property.

Viewing the record most favorably toward the judgment, as we must, the following pertinent facts appear. The accident occurred on Route 21, a two-lane north and south state highway in Alameda County, between 5:30 and 6 a.m. on Tuesday, January 31, 1967. At that time a light rain was falling and it was dark. The decedent was driving his 1963 Peugeot sedan south on the two-lane highway when he swerved into the…