Brown v. Reliable Iron Foundry, Inc.

• Decision Date: 08 October 1959
• Court: California Court of Appeals Court of Appeals
• Parties: Eddie Joe BROWN, a Minor, by Theadora Brown, his Guardian ad litem, and Theadora Brown, individually, Plaintiffs and Appellants, v. RELIABLE IRON FOUNDRY, INC., a corporation, Defendant and Respondent. Civ. 23497.

Page 633

344 P.2d 633

174 Cal.App.2d 294

Eddie Joe BROWN, a Minor, by Theadora Brown, his Guardian ad litem, and Theadora Brown, individually, Plaintiffs and Appellants, v. RELIABLE IRON FOUNDRY, INC., a corporation, Defendant and Respondent.

Civ. 23497.

District Court of Appeal, Second District, Division 1, California.

Oct. 8, 1959.

Thomas G. Neusom, Los Angeles, for appellants.

No appearance for respondent.

LILLIE, Justice.

This is an appeal from an order granting defendant's motion for a new trial in a personal injury action resulting in a verdict for plaintiffs. Respondent filed no brief, and the matter has been submitted upon the record and appellant's opening brief (Rule 17(b), Rules on Appeal). In such a case this court may assume the burden of reviewing the record. Unless there is absent any evidence which would support a judgment in favor of the moving party (Hawk v. City of Newport Beach, 46 Cal.2d 213, 219, 293 P.2d 48), it becomes our duty to affirm.

The claims of Eddie, the minor plaintiff, and consequently those of his mother for medical expenses, are said to come within the 'attractive nuisance' doctrine. The accident occurred on June 23, 1954, when Eddie was 13 years of age. The instrumentality causing the injuries was an octagon-shaped tumbling barrel used by the defendant in the operation of its foundry business. It was anchored by steel or cast iron framework to the cement floor in a roofed shed about 150 feet from some sand piles, likewise on defendant's premises. By a spinning or revolving process the tumbler's primary function is to clean metal castings which, when first coming out of the foundry, are covered with mold sand. About 6 feet long and 35 inches in diameter, the machine is driven by a 10-horse-power motor hooked to V belts which turn the tumbler over at about 30 revolutions per minute; if an obstruction comes into contact with the machine, however, the belts will slip before the engine drives any further. During normal operation, it is totally enclosed with a metal top. Additionally, a trap door is dropped down from the overhead and another heavy door placed in front for the suppression of noise. Although its average load would exceed 3,000 pounds, at the time of the occurrence the tumbler contained between 800 and 1,100 pounds of material. The exact weight of the machine itself was never elicited; it was stated to be 'at least a thousand pounds' and possibly as much as 2,000 pounds. Two control buttons are located in a 'pushbutton station' about four or five feet from the cement floor; to start or stop the machine, the controlling button must be pushed in about a quarter of an inch.

Eddie and other minors, some younger and some older, secured access to the foundry yard at an ungated and unfenced point in the rear of the premises. The plant was not then in operation, the day shift having gone off duty. The group started to play in the sand piles. While there was some testimony that children had been chased out of the yard for many years, no similar warning was given Eddie and his companions. As he and his friends were playing in the sand, other children entered the yard. It was noticed that they went into an open shed from where they shortly emerged with shiny steel balls. The minor plaintiff and the others then left the sand pile and entered the shed in which the tumbler was located. Eddie stated that he climbed into the open machine to secure some balls; as he did so, the tumbler tipped or fell over, pinning him underneath. Two adult witnesses for the plaintiff stated that they had to lift the machine off his back. It was further stated by a companion of Eddie that the control buttons for the machine were not touched or tampered with. The next morning, at 4:30, an employee of defendant found the motor running.

A motion for nonsuit was denied. At that time the court observed: 'Well, it isn't for me to try the fact here, to state what I believe or what I don't believe about this thing, so I won't do it at this time, except to say this: If I were trying the fact I'd certainly want some explanation as to why that machine loaded with steel balls rolled around.' Continuing: 'I personally have doubt, I have a question mark in my mind as to whether this accident occurred as the plaintiff's witnesses say it occurred. The evidence shows that according to the plaintiff's witnesses that this boy leaned his weight over what would be the mouth of the tumbler there. A machine of that size, I have got a question in my mind as to whether the weight of a man would turn that thing and revolve it clear around so that he would go under it to the extent that much of his legs were sticking out. I have a question in my mind on the mechanical forces working that would cause the result that the plaintiff's evidence shows. * * * I don't say it didn't happen that way, but I'd say I would have a great big question mark up in here as to whether it did.' Subsequently the jury found in favor of the plaintiffs and a new trial was thereafter granted on the ground of the insufficiency of the evidence to support the verdict.

The sole issue for determination is whether the trial court abused its discretion in granting the motion it being contended that the evidence could not support any verdict other than that returned.

'In passing upon a motion for a new trial based upon the insufficiency of the evidence, it is the exclusive province of the trial court to judge the credibility of the witnesses, determine the probative force of testimony, and weigh the evidence. (Citations.) In considering the sufficiency of the evidence upon such motion the court may draw inferences opposed to those drawn at the trial (citation) and where the only conflicts consist of inferences deduced from uncontradicted probative facts, the court may resolve such conflicts in determining whether the case should be retried. (Citation.) It is only where it can be said as a matter of law that there is no substantial evidence to support a contrary judgment that an appellate court will reverse the order of the trial court (citation).' Brooks v. Metropolitan Life Ins. Co., 27 Cal.2d 305, 307, 163 P.2d 689, 690. 'The fact that he considered the evidence sufficient to justify his denial of defendants' motions...