Borenkraut v. Whitten

• Decision Date: 31 August 1961
• Citation: 15 Cal.Rptr. 635,56 Cal.2d 538,364 P.2d 467
• Court: California Supreme Court
• Parties: , 364 P.2d 467 Yetty BORENKRAUT, Plaintiff and Appellant, v. Robert WHITTEN et al., Defendants and Respondents. * L. A. 26324

Page 635

15 Cal.Rptr. 635

56 Cal.2d 538, 364 P.2d 467

Yetty BORENKRAUT, Plaintiff and Appellant, v. Robert WHITTEN et al., Defendants and Respondents. ^*

L. A. 26324.

Supreme Court of California

Aug. 31, 1961.

Brody & Grayson, Fred A. Weller and Jack Corinblit, Los Angeles, for plaintiff and appellant.

Dryden, Harrington, Horgan & Swartz and Vernon G. Foster, Los Angeles, for defendants and respondents.

PETERS, Justice.

In this action for personal injuries, judgment was entered on a jury verdict in favor of defendants, and plaintiff has appealed. She has also attempted to appeal from the order denying her motion for a new trial, which order is not appealable. The main ground of the appeal from the judgment is that the trial court committed prejudicial error in the giving and refusing of certain instructions.

The facts are as follows: Plaintiff's automobile stalled, and was pushed to defendants' service station. The engine would not start, although there was gasoline in the tank. An attendant (Harryman) attempted to start the engine by means of the starter switch, with no success. Then the second attendant (Randen) removed the air filter and, in an attempt to suck gasoline into the carburetor, he placed his hand over the opening of that instrument while Harryman again depressed the starter switch, but the engine failed to start. They then decided that Randen should fill the carburetor with gasoline. There was testimony to the effect that 'he was pouring it (the gasoline) like you pour water into something.' There was also undisputed testimony that the safe or porper procedure would be to place only a small amount (between two tablespoons to half a cup) of gasoline in the carburetor. While the pouring was going on, Harryman turned on the starter switch. In the meantime plaintiff walked to where Randen was working, and stook by him, watching what he was doing. There is no evidence that either attendant warned her against such action. She testified thalt she had never put gasoline in a carburetor, had never before been present when such was done, and did not know that there was any danger. As Harryman engaged the starter a backfire occurred, flames shot out of the carburetor enveloping plaintiff, resulting in the injuries of which complaint is made.

Defendants offered testimony of experts who gave their opinion that the backfire could have been caused by some unknown defect in the engine, rather than by the manner in which the gasoline was poured into the carburetor. By way of rebuttal plaintiff showed that the automobile had remained in the possession of defendants for a sufficient length of time for them to have determined the exact nature of any alleged defect in the engine, and that they had failed to offer evidence of such defect.

The theory upon which plaintiff's case was tried was that:

(a) since priming an automobile by pouring gasoline always involves the risk of backfire, the failure to take extra precautions, and the failure to warn a bystander, constituted negligence; and

(b) Pouring gasoline into the carburetor at the same time the ignition was activated also constituted negligence.

The defense was predicated upon a denial of these contentions and upon contributory negligence.

At defendants' request the trial court instructed the jury on the issue of contributory negligence. It refused to give two instructions requested by plaintiff, one covering plaintiff's theory that the pouring of gasoline required special precautions, and the other on the theory of res ipsa loquitur. The jury returned its verdict for defendants, and in so doing added (presumably in the handwriting of the foreman) a statement to the effect that the verdict was predicated upon a finding that defendants were 'not guilty of negligence.'

Plaintiff bases her appeal on the contention that the trial court committed error in instructing on the doctrine of contributory negligence and in refusing to instruct on the two theories requested by her, and mentioned above. It is contended that each such error was prejudicial. If there was error as to any one of these claims, and if such error was prejudicial, then, of course, a reversal is called for.

Did the instruction on contributory negligence constitute prejudicial error?

We have searched the record for any evidence, in addition to that set forth above, which might be deemed to support the defense of contributory negligence, and we have found none. While it is true that plaintiff voluntarily placed herself in a position that turned out to be dangerous, in the absence of any knowledge regarding defendants' contemplated procedures, and the further absence of any warning from defendants, this act alone could not support a finding of negligence on her part. ¹ The only evidence of plaintiff's conduct on which defendants rely for proof of contributory negligence, is that plaintiff, having heard one of the attendants state that he was going to pour gasoline into the carburetor, walked to a position in close proximity to the place where he was working, without any reason other than idle curiosity. But the evidence shows that she did not know that the second attendant would activate the starter while he pouring was going on, had no means of recognizing the danger if she had known the fact, and had every reason to believe that Randen (who was pouring the gasoline) would not place himself in a position of danger. She was only placing herself in the same position assumed by defendants' agent. Thus, the case falls peculiarly within the rule of Hardin v. San Jose City Lines, Inc., 41 Cal.2d 432, at page 440, 260 P.2d 63, where this court held that an instruction on contributory negligence should not be given when the only evidence on that issue was that plaintiff failed to take precautions against action on the part of the defendant which she had no reasonable basis to believe would be performed, and which, if performed, would be negligent.

Thus, to instruct on contributory negligence at all was erroneous. But such error was not prejudicial (Cal.Const., art. VI, § 4 1/2). Plaintiff contends that since there was no evidence of contributory negligence, the giving of any instruction on that theory must be deemed prejudicial, and relies on the rule expressed in Strandt v. Cannon, 29 Cal.App.2d 509, 85 P.2d 160. While the Strandt and other cases so hold, they do not involve another factor which is present in this case. Here the jury has, in effect, rendered a special verdict by which it has made a record of the fact that it arrived at its decision without considering the question of plaintiff's negligence. By finding that defendants were not negligent the issue of plaintiff's contributory negligence did not have to be passed upon. It must, therefore, be concluded that under the facts here involved the error complained of was not and could not have been prejudicial. ² It must be noted, however, that other considerations require a reversal. On the retrial, in the absence of evidence to support it, no such instruction should be given.

Did the refusal to instruct on the special duty of one pouring gasoline constitute prejudicial error?

The plaintiff requested, and the trial court refused to give, the following instruction:

'Because of the great danger involved in the pouring of gasoline down an open carburetor and starting the automobile while persons are in the area of the open carburetor, a person of ordinary prudence will exercise extreme caution when engaged in such an activity. Hence, it is the duty of anyone pouring gasoline through that carburetor or attempting to start the automobile under those circumstances to exercise extreme caution.' ³

The trial court did not indicate its reason for the refusal to give this instruction. ⁴ An examination of the record discloses no other instruction was given covering this subject matter.

The court also refused the following instruction requested by plaintiff:

'Inasmuch as the amount of caution used by the ordinarily prudent person varies in direct proportion to the danger known to be involved in his undertaking, it follows that in the exercise of ordinary care, the amount of caution required will vary in accordance with the nature of the act and the surrounding circumstances.

'To put the matter in another way, the amount of caution involved in the exercise of ordinary care, and hence required by law, increases or decreases as does the danger that reasonably should be apprehended.'

The refusal of the latter instruction may have been based upon the fact that it was covered by another instruction, requested by defendants, and given as follows:

'The amount of caution required of a person in the exercise of ordinary care depends upon the danger which is apparent to him or should be apparent to a reasonably prudent person in the particular situation and circumstances involved.'

Thus, it appears that the court did advise the jury in general terms, that the quantum of care required is dependent upon the danger involved in the activity undertaken. But it cannot be said that such includes all of the elements embraced in the first quoted instruction on the refusal of which plaintiff relies for reversal. That instruction was intended to cover the law applicable to the risk incident to dealing with dangerous instrumentalities in general, and explosive or highly inflammable materials in particular. The cases are clear that the care required of a reasonable person in dealing with such instrumentalities, because of the great risks involved, is so great that even a slight deviation from the standards of care will constitute negligence. (See Warner v. Santa Catalina Island Co., 44 Cal.2d 310, 317, 282 P.2d 12; citing Rudd v. Byrnes, 156 Cal. 636, 105 P. 957, 26 L.R.A.N.S., 134; Cucinella v. Weston Biscuit Co., 42 Cal.2d 71, 75, 265 P. 513; and Lasater v. Oakland Scavenger Co., 71 Cal.App.2d 217 221, 162 P.2d 486. See also Signorelli v. Potter, 43...