Milloway

We have but one question to answer in this case in order to arrive at our decision, namely, does a certain safety order of the Division of Industrial Safety (Cal. Admin. Code, tit. 8, § 1576, subd. (e)) apply to a flat-bed truck which is carrying a load of fabricated house frames?

Plaintiff, the respondent, was construction superintendent of a housing subdivision construction project. On June 22, 1959, an employee of Griffin Building Material Company, the appellant, drove a flat-bed, three-axle truck and a two-axle trailer to the site of the housing project, the truck carrying two frame loads and the trailer two frame loads, each frame load being sufficient for a single house. The trailer was driven onto a vacant lot which was part of the housing project but on which construction had not yet started, and was unlocked from the truck. The truck was then driven to a lot where the frames were required, was unloaded, and was driven back to the trailer for the purpose of transferring the frames from the trailer to the truck. Plaintiff was helping in the process of removing the frames from the one vehicle to the other by manipulating rollers at the back end of the trailer with an iron…

We deny respondent’s petition for rehearing, but we make certain corrections in our factual statement; and, because respondent has altered considerably the emphasis he places on different parts of the safety order, we comment briefly on his argument as freshly stated in his petition for rehearing.

The factual corrections are these: (1) Although the word “frames” was used in the testimony of the drivers, the word “lumber” also was used, and we are quite willing to accept, and we do accept, respondent’s statement, because he is respondent and is entitled to the most favorable construction, that the material hauled was lumber intended for, but not fabricated into, house frames, and that there was a load of doors and nails. (2) The vehicle presumably was equipped with a horn audible at 200 feet (there being no evidence to the contrary), but it was not sounded.

We do not regard the safety order as requiring an automatic warning device on a flat-bed truck, whether the material hauled was lumber or frames, and although doors and nails were part of the load. In his petition for rehearing, respondent, although not conceding that the automatic device requirement does not apply to flat-bed…