Calame v. Stevens

• Decision Date: 26 March 1952
• Citation: 110 Cal.App.2d 45,242 P.2d 109
• Court: California Court of Appeals Court of Appeals
• Parties: CALAME v. STEVENS et al. Civ. 14885.

Page 109

242 P.2d 109

110 Cal.App.2d 45

CALAME v. STEVENS et al.

Civ. 14885.

District Court of Appeal, First District, Division 2, California.

March 26, 1952.

Hearing Denied May 22, 1952.

Campbell, Hayes, & Custer and Austen D. Warburton, all of San Jose, for appellants.

Smith, Wool & Perren and Vernon E. Perren all of San Jose (Robert L. Crane, Burlingame, of counsel), for respondent.

JONES, Justice pro tem.

This appeal is from a judgment in favor of plaintiff on account of personal injuries suffered when he fell from a metal framework over the entrance to defendant's used car lot in San Jose. The case was tried by the court sitting without a jury.

The framework from which plaintiff fell was made of iron pipes two or two and one-half inches in diameter. An upright pipe stood on each side of the entrance to the lot extending upward ten to twelve feet. These uprights were connected at the top by a horizontal pipe of the same size. The two gates of the entrance hinged on the uprights, and a wire fence extended from each upright in either direction.

The defendant undertook to extend this framework upward by constructing a superstructure for hanging a display sign. Pieces of pipe of the same diameter, about two and one-half feet long, were coupled onto the existing uprights. This work was done by two of the defendant's employees. These men were busy trying to fasten the horizontal pipe of the superstructure to the two vertical extensions when the plaintiff arrived at the car lot. Plaintiff was also in the used car business in the same city. The defendant had telephoned him earlier about some used cars that he had for sale and had asked him to come over and look at them. When plaintiff arrived the two employees of defendant were having difficulty in coupling the horizontal pipe to the south upright extension. After some casual conversation the defendant said in a jocular manner to plaintiff, 'Well, if I was as tall as you are, I'd just reach up there and screw it in for the boys.' To which plaintiff replied, 'Yes. All right. I will.' He then climbed up and straddled the lower horizontal pipe, and wrapped his legs about the upright securing himself. Next he guided the top pipe into the coupling in the extension of the sought upright and gave it a turn or two with his hands. The defendant then asked him to tighten the pipe with a wrench, and handed up to him a two foot pipe wrench. Plaintiff leaned over to take the wrench from the defendant and in doing so grasped the south upright extension for support. Just as he was about to take the wrench from the hands of the defendant the extension gave way and he fell to the sidewalk sustaining three fractured vertebrae and other injuries. The trial court awarded him damages and it is from this judgment that the defendant has appealed.

Appellant urges as grounds for reversal that the evidence is insufficient to sustain the finding of the trial court that the injury resulted from his negligence, and secondly, that the plaintiff assumed the risk of injury when he climbed onto the framework.

The defendant rested at the close of the plaintiff's case and offered no proof in defense.

Appellant pleaded in his answer and makes the argument here in support of his second ground for reversal of the judgment that the plaintiff acted with full knowledge of all the facts and circumstances surrounding his injury and assumed the risk of the matters which brought it about. This issue was resolved against appellant by an appropriate finding and this court is only concerned as to whether the finding is supported by substantial evidence. In DeGraf v. Anglo California Nat. Bank, 14 Cal.2d 87, 100, 92 P.2d 899, 905, it is said that, '* * * before it can be said that one has 'assumed the risk' of a specified hazard, it must be shown that he had knowledge of the condition creating the hazard. One does not assume the risks of danger which he has no reason to anticipate.' The main structure over the entrance appeared to be perfectly safe, and so it proved to be upon plaintiff climbing onto it. The danger lay in the extension which broke when plaintiff grasped it for lateral support. Taking hold of it for support is nothing more than any reasonable person would have done under the same circumstances. It was perfectly natural and reasonable to grasp the extension in leaning over to reach the pipe wrench. The extension was of the same size and kind of material as the pipe on which he was sitting, and he had no reason to anticipate that it would not afford the same degree of support. There was nothing in its appearance to indicate any inherent weakness.

The witness Slaughter in describing the pipe as he saw it on the ground after the accident testified: 'I couldn't tell you whether it was an old break or a new one, but had broken off from the bottom where it had been screwed in, and not all the way around, about half way * * * It looked like it come loose. It looked like the thread could be cut too deep.'

It is the established rule that whether a person had assumed the risk of injury in any particular case is a question of fact for the court or jury to determine. As is said in DeGraf v. Anglo California Nat. Bank, supra, 'The question of knowledge and appreciation of a danger or the lack thereof in an...