Henderson v. Harnischfeger Corp.

• Decision Date: 28 October 1974
• Citation: 12 Cal.3d 663,117 Cal.Rptr. 1,527 P.2d 353
• Court: California Supreme Court
• Parties: , 527 P.2d 353 Rosa Lee HENDERSON et al., Plaintiffs and Appellants, v. HARNISCHFEGER CORPORATION, Defendant and Respondent. Sac. 8000. In Bank

Page 1

117 Cal.Rptr. 1

12 Cal.3d 663, 527 P.2d 353

Rosa Lee HENDERSON et al., Plaintiffs and Appellants, v. HARNISCHFEGER CORPORATION, Defendant and Respondent.

Sac. 8000.

Supreme Court of California,

In Bank.

Oct. 28, 1974.

Andrew J. Smolich, Bertolani & Smolich, Sacramento, P. M. Barceloux, Burton J. Goldstein, Albert E. Levy, Ralph Golub, Goldstein, Barceloux & Goldstein and M. Reed Hunter, Chico, for plaintiffs and appellants.

P. Beach Kuhl, Sedgwick, Detert, Moran & Arnold and David B. Paynter, San Francisco, for defendant and respondent.

SULLIVAN, Justice.

In this action for damages for wrongful death, plaintiffs, who are the surviving wife and children of Thomas Jackson Henderson, appeal from a judgment entered on a verdict in favor of defendant.

Decedent was employed as on oiler by Continental-Heller Corporation on a construction project at the University of California at Davis. He was assigned to a large earth-moving crane manufactured by defendant Harnischfeger Corporation, which was operated by Maynard, a Continental employee. Decedent's duties were to keep the crane properly oiled and greased, to move it from one job to another and to assist the operator in its safe and efficient use. The equipment consisted of a cab containing the operator's controls, a boom mounted on the body in front of the cab and a counterweight to the rear of the cab designed to give the crane stability when the boom was extended. There was evidence that the boom and its counterweight normally rotated without making any noise.

Decedent was killed by the crane shortly after he had signaled the operator that the boom could be swung into a new position. As the boom was rotating, the operator felt a 'thump' and immediately stopped the crane. No one observed the accident but the record establishes that decedent was struck by the counterweight and crushed against the base of the crane. ¹

Plaintiffs brought the present action against Harnischfeger Corporation as the manufacturer of the equipment on theories of negligence and strict liability in tort. They premised the latter theory on the charge that the crane was defective in design in that it was impossible for the operator to have a full view to the rear while operating the equipment. The case was tried to a jury only on the theory of strict liability.

Plaintiffs produced expert testimony at trial in order to prove that the crane was defective. Joseph Williams, a mechanical engineer who had inspected the crane, testified that the cab of the crane was designed in such a manner as to completely obstruct the view of the operator to the rear in the area where the counterweight swung. He expressed the opinion that this blind spot could be almost entirely eliminated by installing a mirror on the side of the cab; that, depending on the size and shape of the mirror, it would give the operator a clear field of vision to the counterweight during its movement; that a mirror could be effectively used by the operator without interfering with his control of the crane; and that it cost would not exceed $125. In addition, he stated the crane could be equipped with a sounding device which would warn others not to enter the zone of danger during the operation of the crane. ² Such a device could be installed at a cost of $100 to $200. John New, an experienced crane operator, who had handled an identical crane, testified that after nearly hitting a person with the counterweight, he installed a mirror to eliminate the blind spot in the rear. However, the mirror was required to be dismantled each time the crane was moved to a new site and, on one occasion when he failed to replace the mirror, an accident remarkably similar to the present one occurred. New expressed the opinion that the accident would not have occurred had his crane been equipped with the mirror. Further, he believed that a crane operator would be able to use a mirror for rear vision and still devote sufficient attention to the movement of the crane in front.

Defendant introduced expert testimony to the contrary. James Collins, a mechanical engineer, while conceding that the installation of a mirror would enable the operator to see to the rear, recommended against such a measure. In his opinion it would divert the attention of the operator from the movement of the boom, which he thought was the major hazard to the operator and to others. He concluded that a sounding device would be ineffective since the danger of entering the area of the are of the counterweight would be obvious to anyone.

Defendant also presented evidence on its defense of assumption of risk. Churchill Brunley, who was supervising the operation of the crane on the day of the accident, described decedent as 'alert' and 'intelligent.' He testified that upon leaving the area about 10 or 15 minutes before the accident occurred, he warned decedent about the danger of being struck by the counterweight and instructed the latter to keep other persons out of the danger zone. Additionally, the record reveals that the decedent had been employed as an oiler for four years and was familiar with the operation of the crane.

In instructing the jury on the theory of strict liability in tort, the trial court gave a modified version of former BAJI No. 9.01 (Cal.Jury Instrs.Cov. (5th rev.ed.1969)). ³ Under this instruction, the court informed the jury that '(t)he defendant manufacturer of a product is not required under the law so to create and deliver its product as to make it accident proof . . ..' The same instruction also told the jury that in order to establish defendant's liability, plaintiffs had the burden of proving, among other things, that the decedent was 'unaware of the claimed defect' and that the 'defect, if it existed, made the product unreasonably dangerous and unsafe for its intended use.' We have set forth the pertinent language in italics. (See fn. 3, Ante.)

In accordance with defendant's assertion of the defense of assumption of the risk, the court also gave at defendant's request BAJI No. 4.30 in a modified form. ⁴ At the same time, at the request of plaintiffs, the court directed the jury that it must consider the 'necessities' of the decedent's employment in evaluating his conduct. (BAJI No. 3.40.) ⁵

The jury by a vote of 10 to 2 returned a general verdict in favor of Harnischfeger and judgment was entered accordingly. This appeal followed.

It is clear, and the parties agree, that the court's instruction on strict liability in tort (see fn. 3, Ante) is erroneous in the light of subsequent opinions of this court. After the trial in this case, we rendered our decisions in Cronin v. J.B.E. Olson Corp. (1972)8 Cal.3d 121, 104 Cal.Rptr. 433, 501 P.2d 1153 and Luque v. McLean (1972)8 Cal.3d 136, 104 Cal.Rptr. 443, 501 P.2d 1163. Cronin held (8 Cal.3d at pp. 134--135, 104 Cal.Rptr. 433, 501 P.2d 1153) that in proving the existence of a product defect, the plaintiff is not required to establish that the defect made the product 'unreasonably dangerous.' ⁶ Luque held (8 Cal.3d at p. 146, 104 Cal.Rptr. 443, 501 P.2d 1163) that in a products liability action the plaintiff does not have the burden of proving that he was unaware of the defect causing the injury. ⁷

Since on the point covered by our later decision in Cronin, plaintiffs requested a substantially similar instruction (see fn. 6, Ante), they may not now complain of the corresponding portion of the instruction given by the court. (6 Witkin, Cal.Procedure (2d ed. 1971) p. 4258; see and compare Luque v. McLean, Supra, 8 Cal.3d at p. 146, 104 Cal.Rptr. 443, 501 P.2d 1163.) However, they are not precluded from urging error based on our ruling in Luque.

The precise question, therefore, which we must decide is whether this error requires a reversal of the judgment. Generally speaking if it appears that error in giving an improper instruction was likely to mislead the jury and thus to become a factor in its verdict, it is prejudicial and ground for reversal. (4 Witkin, Cal.Procedure (2d ed. 1971) pp. 3056--3057.) To put it another way, '(w)here it seems probable that the jury's verdict may have been based on the erroneous instruction prejudice appears and this court 'should not speculate upon the basis of the verdict. " (Robinson v. Cable (1961) 55 Cal.2d 425, 428, 11 Cal.Rptr. 377, 378, 359 P.2d 929, 930; see also Luque v. McLean, Supra, 8 Cal.3d 136, 147, 104 Cal.Rptr. 443, 501 P.2d 1163; Vistica v. Presbyterian Hospital (1967) 67 Cal.2d 465, 471, 62 Cal.Rptr. 577, 432 P.2d 193; Oettinger v. Stewart (1944) 24 Cal.2d 133, 140, 148 P.2d 19.) As we observed in Butigan v. Yellow Cab Co. (1958) 49 Cal.2d 652, 660--661, 320 P.2d 500, 505, 'The determination whether, in a specific instance, the probable effect of the instruction has been to mislead the jury and whether the error has been prejudicial so as to require reversal depends on all the circumstances of the case, including the evidence and the other instructions given. No precise formula can be drawn.' (See also Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 450, 2 Cal.Rptr. 146, 348 P.2d 696; Alarid v. Vanier (1958) 50 Cal.2d 617, 625, 327 P.2d 897.)

Mindful of these principles, we proceed to determine the probable effect of the instruction placing on plaintiff the burden of proving 'that the deceased was unaware of the claimed defect' (see fn. 3, Ante), which instruction, as we have already pointed out, was declared erroneous by us in Luque. The essence of our holding there was that the instruction was improper since it told the jury in effect that the plaintiff had the burden of proving that he had Not assumed the risk of the claimed defect. The almost identical language in the case at bench conveyed the same direction in respect to the decedent's conduct. But the court also instructed the jury as to the defense of assumption of risk, informing them properly that the burden of proving such defense was on defendant.

It is clear...