Carlson v. Glanville
| Decision Date | 07 May 1959 |
| Citation | 170 Cal.App.2d 246,338 P.2d 580 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Douglas CARLSON, by and through his guardian ad litem, Hilda Goclowski, and Hilda Goclowski, individually, Plaintiffs and Appellants, v. Donald C. GLANVILLE, individually and doing business as Glanville Plumbing Company, Defendant and Respondent. Civ. 5672. |
Vizzard, Baker & Sullivan and Di Giorgio & Davis, Bakersfield, for appellants.
Mack, Bianco, King & Eyherabide, Bakersfield, for respondent.
Plaintiff-appellant Douglas Carlson, aged 12, through his guardian ad litem Hilda Goclowski, and Hilda Goclowski individually, brought this action for damages against defendant-respondent Donald C. Glanville, individually and as Glanville Plumbing Company, for loss of the minor's left eye as a result of an explosion of an electrical dynamite cap.
Plaintiffs' complaint alleged that defendant did 'carelessly, negligently and unlawfully keep * * * in a truck * * * a number of dynamite caps'; that defendant knew this and that said caps were attractive to children; and that as a result of the explosion of one of these caps the minor lost his eyesight. Defendant answered, denied generally these allegations, and set up among the affirmative defenses, assumption of risk and contributory negligence.
A resume of the facts shows defendant was a sewer contractor, and lived at 3231 Belle Terrace, Bakersfield. In the area back of his home he maintained certain fenced and unfenced property for the storage of equipment. Parked in this rather tall-fenced area was an old disabled truck formerly used by him. It had been inoperative since 1949. He had a sewer job in Porterville in 1951, and used dynamite and caps on that work. He returned a few unused caps from the job and testified he securely locked them in a box with two padlocks, in which he had tools stored, and placed it in the yard. He said he had no occasion to use them thereafter; that in November, 1954, he first noticed the hasps had been broken off of the box and the old tools and dynamite caps were missing; that he made a thorough search of the premises and in the various trucks and found none of the missing articles; that this included the particular old truck here involved where, in 1955, certain caps were found by some neighbor boys who had climbed over the fence, played on the old truck, and took the eight or nine caps they discovered on the seat of the truck or on the lid of the glove compartment, which were contained in a box marked 'Explosive * * * Dynamite Caps'. These three boys took the caps and hid them in a nearby slough. Later they divided them up. One testified that some time thereafter plaintiff Douglas Carlson, who was not with them when they first took the caps, came to his home and he dug them up from where he had buried them and discharged one cap by means of a wire connected to a dry-cell battery; and that Douglas then asked him for one so he gave it to him. Douglas testified he took the cap, hid it in his home in the loud speaker and in different other places because he did not want his mother to see it; that she did see it on one occasion and whipped him for having it, made him take it back to the other boy, and warned him that it was 'very, very dangerous' and might blow up; that about March 10, 1956, after again obtaining it from the boy, he attached it to a wire and dry-cell and it exploded and put out his eye. The exploded cap was received in evidence. There was some evidence that it was a bit longer and shinier than the ones found in the old truck. The three boys testified they had been on the old truck before this occasion and they never saw these or any other caps there, and that defendant had run them off of his property on previous occasions and told them not to trespass upon it.
A verdict in favor of defendant resulted. Previous to submitting the case to the jury a motion to strike the affirmative defenses, i. e., assumption of risk and contributory negligence, from the answer, on the ground that absolute or strict liability existed, was conditionally denied, i. e., the judge then stated if he later entertained a different view he would cover it by instructions or on a motion for a directed verdict. The record does not show any subsequent motion by plaintiffs for a directed verdict or that any instruction on the subject of absolute liability was offered. It does show plaintiffs offered instructions on the subject of negligence and of contributory negligence. Instead of giving them, the court gave defendant's instruction on these subjects and refused plaintiffs' proffered instructions on the ground they were covered.
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