Carr v. Pacific Tel. Co.

• Decision Date: 28 June 1972
• Citation: 26 Cal.App.3d 537,103 Cal.Rptr. 120
• Court: California Court of Appeals Court of Appeals
• Parties: Larry Scott CARR, a minor, by and through his Guardian ad Litem, Jean Scott Carr, et al., Plaintiffs and Appellants, v. PACIFIC TELEPHONE COMPANY, a corporation, et al., Defendants and Respondents. Civ. 11862.

Page 120

103 Cal.Rptr. 120

26 Cal.App.3d 537

Larry Scott CARR, a minor, by and through his Guardian ad Litem, Jean Scott Carr, et al., Plaintiffs and Appellants, v. PACIFIC TELEPHONE COMPANY, a corporation, et al., Defendants and Respondents.

Civ. 11862.

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

June 28, 1972.

[26 Cal.App.3d 539] John K. Trotter, Jr., Santa Ana, for plaintiffs and appellants.

Miller, Nisson & Kogler and Clark Miller, Santa Ana, for defendants and respondents.

OPINION

KERRIGAN, Associate Justice.

This is an action by the widow and minor children of Fred W. Carr, deceased, to recover damages from a telephone company for his wrongful death. The jury returned with a defense verdict. Plaintiffs' motion for a new trial was denied, and plaintiffs appeal from the judgment. ¹

The trial court instructed the jury on the doctrine of assumption of risk (BAJI No. 4.30, as modified) and admitted some evidence of the fact that decedent had been involved in an immoral affair with a minor in 1961 and had suffered a conviction for issuing checks without sufficient funds for which he served a prison sentence in 1967. Plaintiffs maintain on appeal that the court erred in rendering the assumption of risk instruction and admitting evidence of decedent's character and prior criminal record.

In mid-February 1970, Orange County experienced some heavy winds. On Thursday evening, February 19, a hugh eucalyptus tree fell from the force of the wind, landing in the backyard, and upon the garage and home of Mr. and Mrs. Bearden at 1251 Smoketree Lane in or near the city of Tustin. In the course of the fall, the tree also landed on the utility cables or lines of defendant Pacific Telephone Company, as well as those of the Edison Company and a cable T--V company. Mr. Bearden notified all the utility companies that the tree had fallen on their lines. The next evening, Friday, February 20, a telephone company representative visited the scene. He called his supervisor to '. . . have someone else look at the situation. . . .' A telephone company supervisory foreman visited the residence the same night and requested that a telephone crew be dispatched the next day to replace or repair the telephone wires after the tree was removed from the cable. The Beardens employed Mr. Beck, dba Tip Top Tree Service, a private tree trimmer, to remove the tree from their home and garage. Beck assigned Fred W. Carr (decedent) to remove the tree from the lines, house and garage.

The next morning, Saturday (February 21) a telephone company foreman and two aerial linemen arrived on the scene at 7:30 a.m. Carr appeared at 8:00 a.m. The telephone men secured the telephone lines by tying a rope around a standing tree, then around the telephone lines, and then around another standing tree. While the telephone company employees and Carr were still at the scene, Mr. Beck of the Tip Top Tree Service phoned the Bearden residence and inquired whether Carr needed any help. Carr responded that he didn't need any assistance. One of the telephone linemen also asked Carr if he required assistance, and he replied, 'No.'

Carr started the tree removal operation. The tree had fallen from the rear of the residence toward the front of the lot. He started from the top of the tree and made two cuts. On the third cut, as he was moving from the rear of the house to the rear fence, the remainder of the tree trunk was flung up into the air as a result of the tension created by the telephone wires. The 8--10 foot trunk landed on Carr, resulting in major injuries which caused his death on February 24, 1970.

Carr's employer testified that he was a competent tree trimmer capable of handling almost any situation. His wife testified that he had been employed in the early 1960's as a tree trimmer with the state of California.

Turning to the defendant's personal history and background, the evidence reflected that Carr had three minor children by virtue of his prior marriage to Joan Carr, also known as Joan Breland. In 1958 he married Jean Scott Carr and they had one child, Larry Scott Carr, born November 10, 1958. He and Jean separated temporarily during the years 1961--1963.

At the outset of the trial, respective counsel met with the court in chambers. Plaintiffs' attorney informed the court that he anticipated that defense counsel intended to produce evidence to the effect that Carr had suffered two prior felony convictions, and that he strongly objected to any evidence that defendant had suffered two felony convictions during his 12-year marriage to Jean Scott Carr; that he was principally objecting to any evidence pertaining to a 1961 conviction for statutory rape; while counsel's objection to the admission of any evidence concerning a 1967 conviction for passing bad checks was somewhat equivocal in that he did not believe that the evidence of such conviction would be as inflammatory as that involving the rape conviction, nevertheless, the objection was propounded. While the court sustained the plaintiffs' counsel's motion to suppress any direct evidence of the 1961 statutory rape conviction, the court did admit some testimony of the circumstances surrounding this crime by allowing the defense to prove that in 1961 Carr brought his 16-year old girlfriend to the family home and introduced her to his wife, and that during the years 1961--1963, he left his family, lived with the girl, and failed to support his family. As to the 1967 check conviction, the court admitted evidence of the crime, its surrounding circumstances, and the fact that he served an 11-month Orange County jail sentence therefor.

The first issue requiring resolution is whether the court committed prejudicial error in instructing the jury on the defense of assumption of risk. At the outset, it should be emphasized that Assumption of risk is a narrow defense which should only be permitted in those rare cases where the injured person knowingly exposes himself to an obvious danger. Assumption of risk is available as a defense where there has been a voluntary acceptance of the dangerous condition or hazard, either express or implied, made with knowledge and appreciation of the risk. (Rest. Torts, § 893.) Where the facts indicate that the plaintiff Must have had knowledge of the hazard, the situation is equivalent to actual knowledge, and there may be an assumption of the risk, but where it merely appears that he should or could have discovered the danger by the exercise of ordinary care, the defense is contributory negligence, not assumption of risk. (Hayes v. Richfield Oil Corp., 38 Cal.2d 375, 385, 240 P.2d 580; see Prosser on Torts (3d ed. 1964), pp. 454--468.) Assumption of risk is different than contributory negligence and trial courts should be cautious in instructing on the former. Assumption of risk should only be allowed as a defense where there is proof that the plaintiff had Knowledge of the particular risk, appreciated the magnitude thereof, and Voluntarily assumed the same. (Prescott v. Ralph's Grocery Co., 42 Cal.2d 158, 161--162, 265 P.2d 904.) Assumption of risk is based fundamentally on consent. (Vierra v. Fifth Avenue Rental Service, 60 Cal.2d 266, 271, 32 Cal.Rptr. 193, 383 P.2d 777.)

Because assumption of risk is a limited defense, it is settled that before a jury may be instructed on the doctrine, there must be evidence not only that the plaintiff knew he was stepping into a place of danger but that he also had actual knowledge of the Specific danger involved. (Vierra v. Fifth Avenue Rental Service, Supra, 60 Cal.2d 266, 270--271, 32 Cal.Rptr. 193, 383 P.2d 777; Grey v. Fibreboard Paper Products Co., 65 Cal.2d 240, 244, 53 Cal.Rptr. 545, 418 P.2d 153.) Assumption of risk requires the injured person to have Actual, rather than Constructive, knowledge of the particular danger. (Sperling v. Hatch, 10 Cal.App.3d 54, 61, 88 Cal.Rptr. 704.)

In the case under review, the telephone company maintains that the huge eucalyptus tree laying prone on its wires necessarily presented a dangerous situation to anyone who observed it, and that Carr was an experienced tree trimmer who knew he was confronted with a dangerous situation and, notwithstanding his knowledge of the potential danger, refused the offer of help from his own employer or any assistance from the telephone linemen. In sum and substance, defendant maintains that Carr knew that the undertaking was dangerous but nevertheless assumed the risk incident thereto.

While it may be conceded that a fallen tree laying astride a telephone or electrical line presents an inherently dangerous condition in itself, in that there is always a distinct possibility that the wires could break and snap from the weight of the tree, injuring a workman or bystander, or that a live wire could present a serious hazard, these obvious dangers did Not result in Carr's death. Knowledge of the Specific risk which ultimately causes the injury or death is the watchword of assumption of risk; ordinarily, the plaintiff will not be taken to assume any risk or condition flowing from activities of which he is ignorant; furthermore, the plaintiff must not only know of the facts which create the danger, but he must comprehend and appreciate the danger itself. (Prosser on Torts (3d ed. 1964), pp. 461--468.) Carr had a right to assume that the telephone linemen would perform their duty to secure the cable by tying it in such a manner that it would not create tension or cause the uncut portion of the tree trunk to hurtle through the air like a bean projected from a slingshot. There is absolutely no evidence that Carr knew of the specific danger which ultimately resulted in his injury and death.

Carr had a right to assume that the linemen had properly secured the lines in such a manner that they would remain in place until the tree trunk had been entirely removed from the cable. (See Johnston v. Orlando, 131 Cal.App.2d 705, 708--711, 281 P.2d 357.)...