Calandri v. Ione Unified School Dist. of Amador County

• Decision Date: 22 August 1963
• Citation: 33 Cal.Rptr. 333,219 Cal.App.2d 542
• Parties: Nicholas D. CALANDRI, a minor, by Mike Calandri, his guardian ad litem, Plaintiff and Appellant, v. The IONE UNIFIED SCHOOL DISTRICT OF AMADOR COUNTY, a School District, and William Gebhardt, Defendants and Respondents. Civ. 10549.
• Court: California Court of Appeals Court of Appeals

Page 333

33 Cal.Rptr. 333

219 Cal.App.2d 542

Nicholas D. CALANDRI, a minor, by Mike Calandri, his guardian ad litem, Plaintiff and Appellant, v. The IONE UNIFIED SCHOOL DISTRICT OF AMADOR COUNTY, a School District, and William Gebhardt, Defendants and Respondents.

Civ. 10549.

District Court of Appeal, Third District, California.

Aug. 22, 1963.

Rehearing Denied Sept. 17, 1963.

Hearing Denied Oct. 16, 1963.

W. P. Butcher, Frank R. Crandall, Santa Barbara, for appellant.

Kroloff, Brown, Belcher & Smart, Stockton, William Boone, Santa Rosa, for respondents.

PIERCE, Presiding Justice.

Two fingers and a portion of the palm and wrist of the left hand of an almost 15-year-old plaintiff were blown off when a toy cannon was fired by him unintentionally. The cannon had been made by the boy as a part of a manual training project. Action by the injured plaintiff against the school district and the shop training teacher-defendant, William Gebhardt, was predicated upon the theory that the proximate cause of the accident was the teacher's failure to warn plaintiff regarding the dangers involved in loading and firing the cannon.

Motions for a nonsuit and for a directed verdict were denied. The jury's verdict was for defendants. A poll of the jury showed it voted 10 to 2 for the defense verdict. On plaintiff's appeal error specified relates to the court's refusal to give requested instructions and to the exclusion of photographic evidence. We find error in the refusal of the court to instruct on the duty of care owed by an adult to a child and since we also hold the error to be prejudicial our statement of the evidence cannot resolve all inferences in defendants favor. On the contrary, we must, to test whether a miscarriage of justice has resulted, state facts as a jury could reasonably have found them in plaintiff's favor had it been correctly instructed. (People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243; Aldabe v. Aldabe, 209 Cal.App.2d 453, 511, 515, 26 Cal.Rptr. 208.)

Plaintiff was a freshman student at Ione High School. His instruction included two daily shop periods conducted by defendant Gebhardt as teacher. The students were assigned regular projects. When these had been completed, they were permitted to undertake projects of their own. Two or more years earlier a student, having obtained plans therefor from a magazine, had constructed a model bronze Revolutionary-War-type cannon. It included wheels and carriage. During 1960 three other students in plaintiff's class made similar cannons. To do this required the use of a metal lathe and drill press (used in drilling out the bore, the touch holes and 'pan'.) The teacher approved of this, considering it very good practice on the lathe. The cannons were made without wheels or carriages. They were mounted on blocks of wood. There was other evidence justifying an inference that these cannons were being made to be fired and that the other boys had fired them, using ball bearings as projectiles. There was also evidence that Gebhardt knew about this, although he denied such knowledge.

About three weeks before May 20, 1960, the date of the accident, plaintiff, having completed his assigned work, commenced the making of a cannon as his voluntary project. Again, although Gebhardt denied knowledge of the making of this cannon until the day it was completed, there is both direct and indirect evidence that he had earlier knowledge, and that he knew it was being made to be used as a firearm. Plaintiff testified that he sought and obtained information from the teacher as to where gunpowder might be purchased to use in firing the cannon. He also testified that the drills he used for the bore, touch hole and 'pan' had to be and were specially obtained from Gebhardt. Also there was evidence that the students were graded at least weekly on all their shop work. The teacher saw the cannon on the day it was completed and taken home. It was then fastened to a block of wood with baling wire.

Plaintiff's cannon was constructed from a cylinder of solid bronze obtained from a supply of materials kept by the school and made available to the classes for their projects. In evidence, it is 5 3/4 inches long, 1 1/8 inch in diameter at the breech, tapering to 7/8 inch at the muzzle. The bore is slightly more than 1/4 inch in diameter. There is a touch hole approximately 1/32 inch in diameter running at right angles and into the bore near the breech end. A cup-shaped 'pan' about 1/4 inch in diameter is at the top of the touch hole.

Gebhardt at no time warned plaintiff and, apparently, had not warned the other boys of the dangers involved in firing this type of cannon, nor had he given any instruction regarding the type of a fuse which could be used safely, nor how a fuse should be applied.

Plaintiff was not inexperienced with the use of ordinary firearms, both shotguns and rifles. He had hunted with his father and older brother. He had had no experience, however, in loading or firing a cannon of this type. He did know the purpose which powder served in a shotgun shell and he had seen the effect of the range and burst of shot from a shotgun shell when fired.

Upon leaving the school shop with his cannon on May 20, 1960, plaintiff went home and into a shed behind the house. His purpose was to load the cannon, then carry it loaded to the city limits and fire it. In the shed he took a shotgun shell apart, setting aside the shot and powder. He then muzzle-loaded the cannon, using successively powder, rag-wadding, shot and further wadding. He then mixed other powder with matchheads and worked the combination into the touch hole. He used some thin instrument for this purpose, the nature of which he could not recall. ¹ Either simultaneously or within 10 seconds thereafter the cannon fired, with the resultant injury to the boy's hand.

Plaintiff offered a standard instruction on the care required to be exercised for the safety of a child. (BAJI 148.) ² The court refused the instruction, declaring: 'Refused, X not needed.' Refusal by the court to give the instruction is cited as error. The contention must be sustained. The court had given an instruction on the standard of conduct required of a child. (BAJI 147.) ³ That, however, related to the defense of contributory negligence. The refused instruction related to the standard of conduct required of an adult dealing with a child. ⁴ Refusal to give this instruction was held prejudicial error in Guyton v. City of Los Angeles, 174 Cal.App.2d 354, 344 P.2d 910 (hearing by Supreme Court denied) (an 11-year-old boy, bicycling, struck by a police car) and in Morningred v. Golden State Co., 196 Cal.App.2d 130, 16 Cal.Rptr. 219 (a 4-year-old girl on a tricycle in a trailer court roadway struck by a delivery car).

Respondent contends that because the rule has been stated in cases where the accident involved automobiles, its application should be limited to operators of motor vehicles or other machinery. They suggest no reason so to distinguish; we can find none. If adults dealing with children should be required to exercise extra care so that youth shall be protected against a characteristic impulsive heedlessness, the rule should be applied whenever the evidence shows activities of a plaintiff which the law recognizes as creating a duty of care. There is such a duty when a school as a part of its curriculum includes instruction involving the use of dangerous instrumentalities.

In Mastrangelo v. West Side Union High School District of Merced County, 2 Cal.2d 540, 42 P.2d 634, students (including plaintiff) in a high school chemistry class were instructed in the making of gunpowder. Plaintiff, a boy of good intelligence, had previously performed the experiment successfully following instruction. Later performance of the experiment with another boy, and without supervision, resulted in serious injury when potassium chlorate was substituted for potassium nitrate and when mixing instructions were deviated from. A judgment of nonsuit was reversed on appeal. The Supreme Court, adopting the opinion of this court (per Justice Thompson) and (on page 546 on page 636 of 42 P.2d) that there were facts proved 'from which the jury may reasonably infer that the defendant was guilty of negligence, or that the teacher was under a legal duty to warn and protect the plaintiff against the injury which he received. [citation] Ordinarily the presence of both negligence and contributory negligence are questions for the determination of the jury. [citation] Under the circumstances of this case, we are of the opinion both of these questions should have been submitted to the jury.'

Recently this court in Raymond v. Paradise Unified School District of Butte County, 218 A.C.A. 1, 31 Cal.Rptr. 847, had occasion (under quite different facts) to determine the question of the existence of a duty owed by a school district and its bus driver to supervise activities of students. The opinion (by Justice Friedman) includes an observation pertinent here (on pages 5-6, 31 Cal.Rptr. on page 850):

'* * * A finding of negligence turns upon two elements, first, the existence of a duty to use care, and second, a breach of such duty by the creation of an unreasonable risk of harm. [citations] A third element necessary to establish actionable negligence, is proximate cause. [citations] Inquiry into proximate causation, however, presupposes an affirmative finding of negligence, based upon the dual occurrence of a duty and its breach. [citation] A duty of care, owed by the alleged wrongdoer to the injured plaintiff or to a class of which he is a member, is indispensable to negligence liability. [citation]

'One factor in the delineation of duty is the foreseeability of harm. [citation] Foreseeability is equally pertinent in the exploration of proximate cause, especially where an intervening act plays a contributory role in the accident. [citations] Divergent results are possible and judicial...