Austin v. Riverside Portland Cement Co.

• Decision Date: 06 April 1955
• Citation: 44 Cal.2d 225,282 P.2d 69
• Court: California Supreme Court
• Parties: Grady AUSTIN, Plaintiff and Respondent, v. RIVERSIDE PORTLAND CEMENT CO., J. E. Haddock Co., Ltd.; Haddock Company, a co-partnership, composed of T. J. Haddock and J. E. Haddock, general partners, and G. A. M.ashon and O. Ketting, limited partners, California Electric Power Company, Robert C. Fisher and Glen Hartman, Defendants. Riverside Portland Coment Co., Appellant. Willis Lyle BOEHM, Plaintiff and Respondent, v. RIVERSIDE PORTLAND CEMENT CO., J. E. Haddock Co., Ltd.; Haddock Company, a co-partnership, composed of T. J. Haddock and J. E. Haddock, general partners, and G. A. Mashon and O. Ketting, limited partners, California Electric Power Company, Robert C. Fisher and Glen Hartman, Defendants. Riverside Portland Cement Co., Appellant. L. A. 23300, 23301

Page 69

282 P.2d 69

44 Cal.2d 225

Grady AUSTIN, Plaintiff and Respondent, v. RIVERSIDE PORTLAND CEMENT CO., J. E. Haddock Co., Ltd.; Haddock Company, a co-partnership, composed of T. J. Haddock and J. E. Haddock, general partners, and G. A. M.ashon and O. Ketting, limited partners, California Electric Power Company, Robert C. Fisher and Glen Hartman, Defendants.

Riverside Portland Coment Co., Appellant.

Willis Lyle BOEHM, Plaintiff and Respondent, v. RIVERSIDE PORTLAND CEMENT CO., J. E. Haddock Co., Ltd.; Haddock Company, a co-partnership, composed of T. J. Haddock and J. E. Haddock, general partners, and G. A. Mashon and O. Ketting, limited partners, California Electric Power Company, Robert C. Fisher and Glen Hartman, Defendants.

Riverside Portland Cement Co., Appellant.

L. A. 23300, 23301.

Supreme Court of California

April 6, 1955.

Rehearing Denied May 4, 1955.

Swing & Gillespie and Donald S. Gillespie, San Bernardino, for appellant.

Long & Levit, William H. Levit, Los Angeles, Bert W. Levit, San Francisco, Curtis, Knauf, Henry & Farrell and John P. Knauf, San Bernardino, for respondents.

CARTER, Justice.

In these actions plaintiffs sought damages for personal injuries alleged to have been caused by the negligence of Riverside Cement Company, hereafter referred to as defendant, and California Electric Power Company, hereafter referred to as California. The jury awarded $50,000 to plaintiff Austin (reduced to $25,000 on motion for new trial) and $100,000 to plaintiff Boehm against defendant. Its verdict was for California and against plaintiffs. The injuries were caused by electricity burns when a crane came in contact with an overhead conduit of electricity.

Defendant appeals from the judgments entered on the verdicts. It asserts that the evidence was insufficient to establish any negligence on its part; that any claimed negligence on its part was not the proximate cause of the injuries; that plaintiffs were contributively negligent as a matter of law; and error was committed in the giving of instructions to the jury.

Defendant owns and operates a plant for the manufacture of cement on a plot of about 6 acres of ground. A contract was made between it and Haddock Company to perform, as independent contractor, extensive alteration and construction work on the plant and premises and Haddock was engaged in doing repair work for defendant on one of defendant's rock crushers at the time of the accident on January 10, 1947. Plaintiffs were Haddock's employees. The job was a 'rush' job and it was known by defendant that the work would require night as well as day work. At all times defendant continued the operation of its plant night and day. It retained control of its premises and plant, although not of Haddock's employees, equipment and operations, and had a man on the job (Mr. Brophy at the time here pertinent) whose duties were to observe Haddock's work and to represent defendant in connection therewith. Haddock was to interfere as little as possible in its work with the operation by defendant of its plant. Defendant through its supervisory employees knew that Haddock frequently used cranes with 60-foot booms ¹ in its work; that the cranes worked in various places about the place in the vicinity of and under the power lines thereon; that they were necessary to perform the work; and that a danger existed from the possibility of a crane coming too close to a power line; it also knew that much of Haddock's work was done at night. The use of a crane was the normal and usual method used as a part of the process of repairing a rock crusher. The same crusher had been repaired by Haddock in December, 1947, and a crane was used.

On defendant's premises, as a means of access to the crusher to be repaired, was a ramp or private road. Crossing the road, and about 160 feet from the crusher, California owned and maintained an uninsulated three-wire power line carrying 33000 volts for use by defendant in its plant. The wires were 43.8 feet above the ground. While, as stated, the line was owned by California, defendant could request, and the request would be granted, to have the power shut off the line de-energized. In fact the request had been granted on previous occasions. Haddock had no authority to have the lines de-energized. Such de-energization would stop the operation of defendant's plant but would cause no damage thereto other than the loss of production during the shutdown and the de-energization and re-energization is a simple process of opening and closing a switch. The crusher repair job would take several hours. There also was no obstacle to the posting of warnings by defendant. (The poles supporting the wires had notices of high voltage presumably placed there by California.) In addition to the general knowledge of defendant of the danger of cranes operating near power lines, it had specific knowledge that the deenergization of those lines, when cranes were being operated near the power lines, was a proper safety precaution. Prior to the repair job on the crusher in December, and in connection therewith, Haddock's superintendent Martin requested defendant's superintendent Brophy that the power be shut off so it would be safe to move a crane about and Brophy refused because it would require the shutdown of defendant's plant. (There is considerable conflict on this issue but the testimony is reasonably susceptible of the foregoing.) It could be inferred that defendant knew the same de-energization would be needed for the safety of Haddock's men during the January 10th repair of the crusher but should not expect Haddock to make the request in view of the recent refusal.

The only lights supplied by defendant in the vicinity of the crusher were those on a tower thereon. Lights on portable standards were maintained by Haddock.

The rock crusher consisted of a structure in which rock was deposited. It was crushed by a mauler attached to the end of a 20-foot steel shaft. The repair required that the shaft and mauler be removed from the structure in order that the joinder of the mauler and the shaft could be made secure by removing the zinc holding the two together and placing new zinc in its place.

Late in the afternoon of January 10th, Haddock's employees were directed to assist in the repair of the crusher and the work thereon proceeded between five-thirty and six o'clock. A crane together with a boom cable operator and truck operator were present to lift the shaft and mauler. Plaintiffs testified that it was dark and the power line was not visible; there was barely enough light to work on the crane. To fit the crane for the job required a rigging of three cables on the boom on the lifting end of which was the lifting hook. Plaintiffs were assisting in rigging. The boom was parallel to the ground, the end being five or six feet above the ground. The three cable rigging had been done and plaintiffs went to the crane truck to get the headache ball, a weight to be attached near the lifting hook to keep the cables taut and in proper place. On returning to the end of the cable and hook to attach the ball, the boom had been raised to about 45 and evidently the truck had been moved toward the power line to shorten the distance the ball would have to be carried. The hook was several feet above the ground. Plaintiffs were carrying the ball together and Austin grasped the hook to attach the ball. The hook was charged with electricity because of the proximity of the boom to the power line. When Austin grasped the hook, the electricity flowed through him, the ball and Boehm resulting in the injuries for which damages were awarded.

This court recently stated the rule with reference to the duty owed by one who has control of electricity. "On the subject of negligence the standard of care is, that one maintaining wires carrying electricity is required to exercise the care that a person of ordinary prudence would exercise under the circumstances. Among the circumstances are the well known dangerous character of electricity and the inherent risk of injury to persons or property if it escapes. Hence, the care used must be commensurate with and proportionate to that danger. (Citations.) Specific application of that standard requires that wires carrying electricity must be carefully and properly insulated by those maintaining them at all places where there is a reasonable probability of injury to persons or property therefrom. (Citations.) Upon those controlling such instrumentality and force is imposed the duty of reasonable and prompt inspection of the wires and appliances and to be diligent therein. (Citations.) And, in the places where there is a probability of injury, they must not only make the wires safe by proper insulation, but as stated in Dow v. Sunset Tel. & Tel. Co., 157 Cal. 182, 186, 106 P. 587, 'keep them so by vigilant oversight and repair."' Dunn v. Pacific Gas & Electric Co., 43 Cal.2d 265, 272 P.2d 745, 749. It is true that California rather than defendant was maintaining the power line, yet defendant had control to the extent that it could have the line de-energized and as it controlled its premises it could provide adequate lighting for night work and proper warnings. Hence the care required of it must be measured by the hazard inherent in highly charged wires together with the duty it owed to Haddock's employees (plaintiffs) who were as to defendant, insofar as it had control of the premises, invitees, or business visitors rather than licensees or trespassers; that their status was invitees is clear. Delk v. Mobilhomes, Inc., 118 Cal.App.2d 529, 258 P.2d 75; Lamar v. John & Wade, Inc., 70 Cal.App.2d 806, 161 P.2d 970; Bazzoli v. Nance's Sanitarium, Inc., 109 Cal.App.2d 232, 240 P.2d 672; Dingman v. A. F. Mattock Co., 15 Cal.2d 622, 104 P.2d 26; La Malfa v. Piombo Bros., 70 Cal.App.2d 840, 161 P.2d 964; Prosser on Torts, p. 636. 'One who entrusts work to an independent contractor, but who...