Asplund v. Driskell
| Citation | 37 Cal.Rptr. 652,225 Cal.App.2d 705 |
| Court | California Court of Appeals Court of Appeals |
| Decision Date | 19 March 1964 |
| Parties | Harding W. ASPLUND, Plaintiff and Appellant, Industrial Indemnity Company, a corporation, and Stolte, Inc., Interveners and Appellants, v. Ted DRISKELL and Hood Construction Company, a corporation, Defendants, Cross-Complainants and Appellants, John Burnip, E. Johns, Bill Burnip and Jack Burnip, individually and as co-partners doing business under the firm name and style of Bejac Construction Company, Defendants, Cross-Defendants and Respondents. Civ. 10613. |
Edward T. McCarty, Sacramento, for plaintiff-appellant.
Bradford, Cross, Dahl & Hefner, Sacramento, for intervenors-appellants.
Mento, Buchler & Littlefield, Sacramento, for defendants-appellants.
Rich, Fuidge, Dawson & Marsh, Marysville, for defendants-respondents.
These appeals are from a plaintiff's judgment (after a jury trial) for personal injuries suffered. Plaintiff, a workman standing upon equipment 15 feet above the ground, was trying to disengage an A-frame line from, and engage a load line of a swing boom crane (a 'cherry picker') onto the front end assembly of a fork-lift. While he was so employed, the boom line of the crane broke, striking plaintiff and throwing him to the ground. Serious injuries resulted. Plaintiff's successful theories of negligence were (1) defendant Driskell, the crane operator, employed by defendant Hood Construction Company (renter of the cherry picker), had abusively treated the boom line* in earlier field use of the crane; and (2) Driskell had negligently failed to observe the patently observable deterioration of the cable prior to the accident. 1
Appellants' assignments of error are: (1) insufficiency of the evidence to support the jury's plaintiff verdict, (2) insufficiency of the evidence to support the jury's verdict absolving the owner of the crane, Bejac Construction Company, a copartnership, (3) misconduct of the trial judge during the jury's deliberations and (4) refusal by the trial judge to instruct on the effect of a safety order violation in connection with its possible application to a claim of contributory negligence. We disallow all these assignments and affirm the judgment.
Complexity of facts is only superficial. Once the numerous entities and individuals involved are identified and brought into correlation at the time and place of the accident, the facts are easily understood.
The accident happened on October 3, 1958, at or near the site of the Capehart Housing Project at Beale Air Force Base in Yuba County. Na Mar Builders, a subcontractor on that job, possessed an unassembled fork-lift in three separate pieces: the tractor, the front end assembly, and the fork. It desired to have this fork-lift assembled but did not have the lifting equipment necessary to do this. Stolte, Inc. (a contractor performing unrelated work at the base) had an A-frame mounted upon a truck. It loaned this equipment with its operator, Harding Asplund, the plaintiff, to assist in lifting the fork-lift's front end assembly so that it could be attached to the tractor portion.
This operation was commenced and partially accomplished. The cable of the A-frame was rigged to the top of the front end assembly and this line, powered by the truck's engine had successfully raised the front end assembly almost to a vertical position when the engine stalled and could not be restarted. Na Mar's representative then sought aid from Hood and received the offer to use its cherry picker (under rental from Bejac) and the help of Hood's operator, Driskell. The latter drove the crane to the point of the stalled operation.
Asplund shinned up the A-frame; then Driskell brought the cherry picker's boom in place so that its load line could be fastened to the top of the front end assembly of the fork-lift. Asplund then shackled the crane's load line to the assembly, centering it and keeping it choked so that it would not slide to one side. At Asplund's signal, Driskell brought the load line taut and then the front end assembly was lifted 3 or 4 inches off the ground. At this point '[t]he logging block on the A-frame started to tip over,' and Asplund sought to disengage the line of the A-frame from the fork-lift assembly. He encountered difficulty in removing a pin which would permit the block of the A-frame line to open up and disengage. He then signalled to Driskell 'to boom-up' i. e., raise the boom to maneuver it into a position where disengagement of the A-frame line could be more easily accomplished. Apparently, it was during this operation that the boom cable of the cherry picker broke, causing the boom to drop, striking Asplund on the head. He fell to the ground. His injuries were serious.
The cherry picker, as stated above, was owned by Bejac. It had been rented by Hood and brought to the air base three days before the accident.
The offending boom line was a 5/8 the inch 8 X 25 cable. This means a cable 5/8ths of an inch in diameter, composed of 8 woven strands of wire, each strand contained 25 filler wires. The 8 strands are woven around a hemp core. A 5/8ths inch 8 X 25 cable is not the type specified for this crane by its manufacturer. Its manual calls for the use of a 5/8ths inch 6 X 37 or 5/8ths 6 X 19 cable.
The cable had been installed on this cherry picker two or three weeks prior to the accident. It was new when installed. Its selection was inadvertent. (Casual appearance of all these 5/8ths inch wire cables is the same.) The crane, rigged with the cable, had been used by Bejac on another job for a couple of weeks before the crane had been delivered to Hood. When the cable was installed and again before its delivery to Hood, an inspection was made. Evidence produced by Bejac was that after the installation of the new cable the crane had been carefully operated at all times, and that when delivered the cable was undamaged.
Another, 30-minute inspection, of the 70' long cable was made by Hood's operator, Driskell, when the crane was received. This inspection included a running of the cable through the web of the operator's thumb and forefinger with his hand ungloved. Driskell found the cable in good condition.
Two witnesses, expert in their knowledge of cables, testified, one, Mr. Huntress, for plaintiff and the other, Mr. Von Geldern, for Bejac. They had had the advantage of being able to examine the cable in question, including the section at and in the area of the break.
Although these witnesses testified the 8 X 25 cable should not be used because of a greater susceptibility to crushing through an overwrapping or winding on the drum than a 6 X 37 or 6 X 19 line, they also stated the damage found on this cable did not, in their opinion, result from such an overwrapping or overwinding.
The breaking strength of the 8 X 25 cable is not appreciably lower than a 6 X 19 or a 6 X 37 cable. (14.3 tons as against 16.7 or 15.8 tons, with the load here being only 4,300 pounds.) And from the testimony of these experts the jury reasonably could have drawn the conclusion that the weight of the load could not have caused the breaking of the cable. Since the experts had said damage from overwrapping was nonexistent, the jury reasonably could have concluded also that the fact that an 8 X 25 line was used was not a proximate cause in any respect.
Mr. Huntress testified the cable had been 'very severely weakened' both at and near the break and that this damage was a result of field abuse. (The crane had been used by Hood for laying sections of pipe during the period of its rental.) Mr. Huntress also testified the damaged condition could have been caused by not more than 8 hours of operation under conditions of abuse. 'It could happen very suddenly.'
Mr. Huntress thought the break probably occurred while the portion of the cable which gave way was either on the drum or on the sheave. Mr. Von Geldern disagreed. He found the cable had been damaged for a length of from three to three and one-half feet in both directions from the point of break and it was his opinion the rigging was such that the damaged portion of the cable had never been on the boom drum at all; 'it never actually wound around the drum at any time.'
Counsel for appellants Hood and Driskell, in a closing brief on appeal, have made calculations from which a deduction is drawn the break must have been at a point on the cable where it was wound on the drum; that Driskell's observation during the crane's operation could not possibly have disclosed the damaged condition of the cable prior to the break. We cannot give to appellants' computations that infallibility. Mr. Von Geldern's computations brought a contrary conclusion and Mr. Huntress had testified:
We must assess the opinions of these experts as substantial evidence. We conclude, therefore, that the evidence discussed above, justified the jury in finding (1) that operation of the crane while in Hood's control (whether by Driskell or another operator) resulted in 'field abuse' of the cable which severely damaged it and caused it to break, (2) that the operator Driskell was negligent in failing to observe a patently observable damaged condition of the cable before it broke, and (3) that Bejac's use of an 8 X 25 cable, although not the type specified by the crane's manufacturer, was not a proximate cause of the accident.
Appellants' contentions of misconduct by the trial judge during the deliberations of the jury are based upon incidents where the jury requested the reading of certain testimony and the rereading of certain instructions. These...
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Table of cases
...256 Cal. Rptr. 3d 574, §7:10 Asbury, People v. (2016) 4 Cal. App. 5th 1222, 209 Cal. Rptr. 3d 681, §2:110 Asplund v. Driskell (1964) 225 Cal. App. 2d 705, 37 Cal. Rptr. 652, §§22:120, 22:130 Asplund v. Selected Investments in Financial Equities, Inc. (2000) 86 Cal. App. 4th 26, 103 Cal. Rpt......