Grey v. Fibreboard Paper Products Co.

• Decision Date: 29 September 1966
• Citation: 65 Cal.2d 240,53 Cal.Rptr. 545,418 P.2d 153
• Court: California Supreme Court
• Parties: , 418 P.2d 153 Bert F. GREY, Plaintiff and Respondent, v. FIBREBOARD PAPER PRODUCTS COMPANY, Defendant and Appellant. L.A. 28929

Page 545

53 Cal.Rptr. 545

65 Cal.2d 240, 418 P.2d 153

Bert F. GREY, Plaintiff and Respondent, v. FIBREBOARD PAPER PRODUCTS COMPANY, Defendant and Appellant.

L.A. 28929.

Supreme Court of California

Sept. 29, 1966.

Rehearing Denied Oct. 26, 1966.

Betts & Loomis and Richard B. Castle, Los Angeles, for defendant and appellant.

Edward E. Everly, Lakewood, and James G. Butler, Los Angeles, for plaintiff and respondent.

PEEK, Justice.

Plaintiff was injured when, as a machinist engaged to repair defendant's paper cutting machine, his hand and lower arm were caught between the machine's rollers and severely injured. The jury returned a verdict in favor of plaintiff, and defendant appeals. The sole question presented is whether it was error, under the circumstances, ot refuse to instruct the jury on the doctrine of assumption of the risk involved.

Evidence was adduced at trial to the effect that plaintiff had been a machinist for some thirty years, and during this period had worked on various types of heavy equipment. On the day in question he was sent to defendant's plant by his employer with instructions to correct a malfunction in a paper curring machine. Upon his arrival he refused the offered assistance by defendant's 'leadman,' stating that the job was one that could best be performed by one man.

After two to three hours of work plaintiff found it necessary that he smooth a set of rollers on the machine. This necessitated holding a piece of emery cloth against the bottom roller while the rollers were in operation. Attached to and immediately behind the bottom roller and parallel to it were 'grabs,' or toothed wheels, which removed the paper after being cut by the machine. At some point the emery cloth held by plaintiff was caught by one or more of the 'grabs' and his hand was drawn between the rollers. He attempted to pull away, but could not do so. Because of his position at the moment he could not reach the switch to cut off the power to the machine, nor had defendant provided for someone to remain in the near vicinity to assist plaintiff in the case of an emergency. His cries for help were finally heard by an office girl, the only employee of defendant who was in the near vicinity.

In addition to evidence that plaintiff, as a machinist for thirty years, was experienced in the operation and characteristics of heavy machinery of the type here involved, there is other evidence that he had worked with this particular machine for approximately three hours before the accident, that he knew that none of defendant's employees who might assist him in the event of an emergency were in the immediate area, and that he failed to position himself near a cut-off switch so that he could stop the machine should an emergency arise.

Both the plaintiff and defendant requested instructions on the doctrine of assumption of the risk but the court gave none. However, the trial court did instruct the jury on contributory negligence as follows: 'Contributory negligence is negligence on the part of a person who thereafter becomes a claimant for damages for alleged injury to his person or his property and which negligence, concurring with the negligence of another, contributes in some degree in proximately causing the damage of which the claimant thereafter complains. One who is guilty of contributory negligence may not recover from another for the injury suffered. Negligence is not to be classified into degrees, or grades, or kinds. If you should find that there was negligence on the part of more than one person whose conduct is in question in this case, your determination of liability must not be influenced by any comparison of their negligence. It is immaterial whether one was more or less negligent than another.' Negligence had previously been defined as: '* * * the doing of an act which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, actuated by those considerations which ordinarily regulate the conduct of human affairs. It is the failure to use ordinary care in the management of one's property or person.'

Approximately three hours after the jurors began their deliberations the foregoing instruction on contributory negligence was reread to them at their request. The plaintiff's verdict was returned after two additional hours of deliberation.

The question thus presented is whether, on a judgment for plaintiff in a situation where defendant presented the adduced evidence on the issue of assumption of risk by plaintiff, it was prejudicially erroneous for the court to refuse to instruct on that issue and to give instructions only on contributory negligence.

In Prescott v. Ralph's Grocery Company, 42 Cal.2d 158, 265 P.2d 904, this court discussed the distinction between contributory negligence and assumption of risk. It is stated there, at pages 161--162, 265 P.2d at page 906: 'The defenses of assumption of risk and contributory negligence are based on different theories. Contributory negligence arises from a lack of due care. The defense of assumption of risk, on the other hand, will negative liability regardless of the fact that plaintiff may have acted with due care. (See Prosser on Torts (1941), p. 377.) It is available when there has been a voluntary acceptance of a risk and such acceptance, whether express or implied, has been made with knowledge and appreciation of the risk. (See Rest., Torts, § 893.) Where the facts are such 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 and not assumption of risk. (Hayes v. Richfield Oil Corp., 38 Cal.2d 375, 385, 240 P.2d 580; see Prosser on Torts (1941), p. 386.)' (Emphasis added.) The court concluded in that case that the trial court's instruction on assumption of risk was prejudicially erroneous because it provided for application of the...