Garcia v. San Gabriel Ready Mixt
| Decision Date | 27 November 1957 |
| Citation | 318 P.2d 145,155 Cal.App.2d 568 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Mariano GARCIA, Plaintiff and Appellant, v. SAN GABRIEL READY MIXT, a California Corporation, and Albert C. Strinz, Defendants and Respondents. Civ. 22393. |
David Hoffman, Los Angeles, for appellant.
Schell, Dalamer & Loring, Los Angeles, for respondents.
Plaintiff, Mariano Garcia, was laying concrete foundations under an old house that had been jacked up a few feet.
Defendant, Albert C. Strinz, owned a truck that had been leased, together with himself as driver, to defendant San Gabriel Ready Mixt, a corporation.
Upon the truck was a large barrel-shaped tank, to hold concrete mix for delivery to customers of the corporation. The tank turned round and round, to keep the cement, water, and other ingredients of the mix, in motion.
Mr. Strinz brought his truck to the house where Mr. Garcia was working. Mr. Garcia showed Mr. Strinz where he wanted some of the cement poured, on the west side of the building. The pouring was done by means of a chute attached to the rear end of the truck. Mr. Garcia held the chute and Mr. Strinz operated the truck.
After this pouring was finished, Mr. Strinz took his truck into the street, and backed it into a driveway on the east side of the building. When he got near to the place where this cement was to be poured, he got out of the cab of his truck and looked around, and told Mr. Carcia to hold the chute until it reached the place where the cement was to go. Neither man understood much that was said by the other, for Mr. Garcia didn't speak much English.
The chute was of metal, and was designed to convey coment mix from the tank to foundation forms. The chute was in two parts, one fastened to the rear of the truck; the other was an extension that slipped inside the first, along a flange that held it so that it would go forward or backward. One of the witnesses described it as telescoping.
The extension piece was not of a standard type or design used by original equipment manufacturers. At the time Mr. Strinz purchased the truck, the extension piece was broken and was in the corporation's yard. Mr. Strinz put a new 'ear' or flange on it, and a handle, fitted it as it was used by Mr. Garcia, and fastened it to his truck. The dangerous feature of the chute was that the extension piece would naturally come back against one's thumb if he were holding the handle and if the truck backed into an immovable object.
Then Mr. Strinz got into his cab, backed his truck farther up the driveway, with Mr. Garcia holding the handle of the chute, with the extension thrust out.
Unfortunately Mr. Strinz miscalculated distances, and backed his truck into the side of the house.
This caused the extension piece to violently slide backward. It caught Mr. Garcia's thumb between the handle and the extension, and caused injuries that required amputation of his thumb.
Mr. Garcia brought this action for personal injuries.
The complaint pleads two causes of action. These will be described later on in this opinion.
The trial judge granted a motion for a directed verdict as to the second cause of action, and the jury found against Mr. Garcia as to the first cause of action.
Mr. Garcia appeals from the judgment against him.
It therefore becomes necessary to examine the two causes of action; to determine whether or not it was prejudicial error to direct counsel in his argument to the jury not to mention anything connected with the second cause of action.
The first cause of action is for negligence in driving the truck.
The second case of action is for negligent fabrication, installation, and maintenance of the extension piece on the chute, and that the chute was defectively and carelessly made.
When the trial judge granted the motion for a directed verdict he said:
'* * * there will be no further reference to the second cause of action in the proceedings hereafter, that is to say, during the arguments to the jury, or in my instructions, so the instructions and the argument will relate solely to the first cause of action.
'Now the case will go to the jury on the first cause of action as to both defendants.'
The judgment must be reversed for two reasons.
First, it is to be presumed that counsel for plaintiff obeyed the judge's direction. Therefore plaintiff was denied the right of...
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Strickland v. Roosevelt County Rural Elec. Co-op.
...So.2d 268 (Fla.App.1971). He deals with one of the most tricky situations in the administration of the law, Garcia v. San Gabriel Ready Mixt., 155 Cal.App.2d 568, 318 P.2d 145 (1957), and, the law very zealously protects one against whom a motion for a directed verdict is addressed. Burke v......
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Edison v. Lewis Mfg. Co.
...favor of plaintiff.' Tremeroli v. Austin Trailer Equip. Co., 102 Cal.App.2d 464, 478, 227 P.2d 923, 932; Garcia v. San Gabriel Ready Mixt, 155 Cal.App.2d 568, 571-572, 318 P.2d 145. By their complaint, respondents charged appellant with negligence in that the fatal fall of Mr. Edison was ca......
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Shahinian v. McCormick
...not followed the basic principle that plaintiff must have knowledge of the risk is adequately stated. (See Garcia v. San Gabriel Ready Mixt, 155 Cal.App.2d 568, 572, 318 P.2d 145.) There is no error Plaintiff also claims error in the refusal of the trial court to invoke the doctrine of res ......
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Garcia v. San Gabriel Ready Mixt
...it is also indicated that full and proper instructions on assumption of risk may not have been given. See, Garcia v. San Gabriel Ready Mixt, 155 Cal.App.2d 568, 318 P.2d 145. The verdict in the first trial was nine to three. In the instant trial, there was a unanimous We have concluded that......