Darnold v. Voges
| Citation | 294 P.2d 125 |
| Court | California Court of Appeals |
| Decision Date | 29 February 1956 |
| Parties | Richard DARNOLD, Plaintiff and Respondent, v. Stanley H. VOGES, Raleigh A. Voges, and Ralph C. Voges, copartners doing business under the fictitious firm name and style of Inglewood Farms (sued as Inglewood Farms, Inc., a California corporation), Inglewood Daily News, a California corporation, Mrs. Pluma Whyte, individually, and doing business under the fictitious firm name and style of Torrance Herald, and Does I to X. Inclusive, Defendants. Stanley H. Voges, Releigh A. Voges, and Ralph C. Voges, copartners doing business under the fictitious firm name and style of Inglewood Farms (sued as Inglewood Farms, Inc., a California corporation), Appellants.* Civ. 21108. |
Gibson, Dunn & Crutcher, by Norman S. Sterry, and Sherman Welpton, Jr., Los Angeles, for appellants.
Robertson, Harney, Drummond & Dorsey, by David M. Harney, and Vernon W. Hunt, J., Los Angeles, for respondent.
Defendants demand the reversal of a judgment for damages allegedly resulting from personal injuries suffered when a cow kicked and fell upon plaintiff. They contend (1) the judgment is without evidentiary support; (2) prejudicial errors were made in rulings upon the admissibility of certain evidence; (3) certain instructions were prejudicial.
The Voges Brothers, appellants, operated a dairy farm under the name of Inglewood Farms, Inc., near Torrance, where they processed milk purchased from divers milk producers. The elaborate processing plant included a barn which appellants had leased to John Bos. He owned a herd of some 300 milch cows which he caused to be milked in the barn. Prior to the tragic occurrence of October 31, 1952, Bos had employed respondent as a milker, and on that day the latter was engaged in performing his customary task of milking Bos' cows by using a mechanical device. Thus he was a business invitee on the premises of appellants who shared the occupancy of the barn with their lessee. As he sat on a stool nine inches high, reaching under cow number 3 to attach a milking machine to her, a flashlight bulb flashed nearby, whereupon cow number 2 whose head was in a stanchion pulled back violently and in a moment had crushed respondent to the floor. On crawling out, respondent called to photographer Svensk to inquire who gave him permission to enter the barn and take pictures. The reply was that the foreman of appellants had done so. Respondent suffered serious injuries for which the jury returned a verdict for $72,813.90. The motion for a new trial was denied on condition that the sum of $25,000 be remitted from the verdict.
Appellants' plant was open to the public which was always welcome. In order to excite wider interest in their business, they contracted with the Torrance Herald to advertise their business. The Herald in turn engaged one Hartford to procure an advertisement from appellants. Having been promised a contract, Hartford arranged for Mr. Svensk, a photographer of the Herald to accompany him to Inglewood Farms. There he met Stanley Voges who introduced him to Mr. Barnard, superintendent of the plant for appellants. Hartford conferred with Stanley Voges and advised him that they desired to take photographs of 'anything of interest.'
Having taken a number of pictures of the Farms, Svensk said they would be pleased to get photographs of the actual milking. Barnard replied that permission to do so would be obtained from Bos, since he was lessee of the barn and in control. Appellants now say that 'the record was conclusive that it was under Bos' complete control.' Barnard escorted Svensk and Hartford to the barn where someone said something to somebody and Barnard told the photographer he now had permission to take pictures of the actual milking. After Barnard left the scene, Svensk took two flashlight pictures of cows being milked. At that time the bovines stood so that their bodies were 2 1/2 feet apart with their necks in stanchions. It was at the time of such photography that respondent was injured by cow number 2.
In behalf of their contention that the evidence is not sufficient to support the judgment, appellants assert that they had no management of the barn; that they had leased it to Bos and he was in complete control. It is true he held the barn under a lease, but he had an agreement with appellants that they might bring visitors through the barn. This, appellants frequently did. They built a special platform alongside the barn on which their visitors stood while witnessing the milking machines at work. The passageway from which Svensk took his pictures was a common passageway that was used by appellants, Bos, and the milkers. From the foregoing, it is seen that the jury had sufficient evidence to support their implied finding that appellants exercised a free hand in maintaining dominion over the barn, equally with their lessee. Certainly was that true in so far as appellants' having a photographer enter the barn and photograph the cows in the course of the milking. Not only did they exercise that privilege, but in the case of Hartford and Svensk, Bos made it emphatic that neither he nor his agent had ever consented to anyone's taking flash pictures in that area.
Mr. Barnard likewise testified that neither himself nor anyone in appellants' office was authorized to permit pictures to be taken in the barn. But the jury were justified in rejecting Barnard's testimony for the reason that Hartford and Svensk had come to the plant for the purpose of taking pictures to be used for the benefit of appellants' business. They were to be published in the Torrance Herald. The contention that they were there on their own business and not for the benefit of Inglewood Farms is to disregard the implied finding that they were there with appellants' permission take the photographs, if, indeed they were not present on the invitation of appellants. The advertisement was not to benefit Bos or his herd. Moreover, when Hartford and Svensk arrived at Inglewood Farms, they were greeted by Stanley Voges who left them with Barnard, the Farms' foreman. The latter 'paved our way for all pictures' testified Hartford, and accompanied the two men as they photographed a number of scenes. Having been placed in Barnard's charge, they asked him and he told them what pictures might be taken. After cows 2 and 3 had been taken, to the sorrow of respondent, he inquired of Svensk who gave 'him permission to take a picture in there.' The only reply was: 'The foreman, the foreman.' Since Svensk had met only Stanley Voges and Barnard and since the milkers had no foreman, it must be conceded that the jury were correct in finding that Barnard, foreman of Inglewood Farms, gave Svensk permission to photograph cows 2 and 3 and that he was authorized by appellants to do so.
But appellants go off on a tangent when they direct so much attention to the matter of appellants' not having consented to the activities of Hartford and Svensk. In doing any act that might disturb a herd or a single bovine, the person to be consulted is he who is close at hand and likely to be affected. Because a man is engaged in the performance of a menial task is not a valid excuse for ignoring him when danger lurks in the offing. He is still an individual whose personality demands respect and protection against potential dangers. In so far as his rights to be protected against latent perils are involved every man is a king. But Darnold was ignored by Svensk and by Barnard. While the latter disclaimed having authority to permit pictures to be taken of the cows, and Bos denied having been requested to allow them to be photographed, the glaring facts remain that respondent heard nothing prior to the flash, Barnard was in charge of the photographers in the plant for the occasion and Svensk answered respondent that permission had been given by 'the foreman.' It is true that Barnard testified he had called out requesting the milkers to cooperate; that he knew all four milkers, but had heard no response and never identified a milker as having consented; but Mr. Hartford testified that he heard no statement of Barnard that it was necessary to get the permission of the milkers; nor did Barnard make request of anyone in the barn to do so. The evidence is sufficient to justify a finding that appellants did not have the consent of respondent to explode a flash bulb before the cows where he was in pursuit of his duties, nor did they or the photographer warn respondent.
It is fundamental that all persons are required to use ordinary care to avoid injuring others. Such care is that of an ordinarily prudent person reasonably required under the circumstances of a given case. The amount of such care must be according to the danger that might reasonably be anticipated. Hilyar v. Union Ice Company, 45 Cal.2d 30, 286 P.2d 21. Everyone is bound without contract to abstain from injuring the person of another or of infringing upon his rights. Civ.Code, § 1708.
Appellants did not exercise the care expected of a reasonably prudent man under the circumstances, to avoid creating a foreseeable risk of harm to respondent. They must have known that to send a photographer into the cow barn at feeding time to explode a flash bulb would excite the cows or some of them, cause them to pull and jerk their stanchions, to kick, push or fall against any object near. They knew four milkers were at work among the 60 cows; that one or all of them might be under a 1200-pound animal and that a sudden fright might result in the trampling of the milker. They knew, also, there was no urgent necessity of either a public or private nature requiring such speed in the photographing of the cows as would not allow a moment's delay to call the milkers out. Because appellant's controlled the matter of permitting strangers...
To continue reading
Request your trial