Johnston v. Orlando

• Decision Date: 22 March 1955
• Citation: 131 Cal.App.2d 705,281 P.2d 357
• Court: California Court of Appeals Court of Appeals
• Parties: Archie L. JOHNSTON, Plaintiff and Respondent, v. Salvatore C. ORLANDO and Peter Orlando, Defendants and Appellants. Civ. 16263.

Page 357

281 P.2d 357

131 Cal.App.2d 705

Archie L. JOHNSTON, Plaintiff and Respondent, v. Salvatore C. ORLANDO and Peter Orlando, Defendants and Appellants.

Civ. 16263.

District Court of Appeal, First District, Division 1, California.

March 22, 1955.

Rankin, O'neal, Luckhardt, Center & Hall, San Jose, Byron J. Snow, Santa Clara, of counsel, for appellants.

Morgan & Beauzay, San Jose, for respondent.

BRAY, Justice.

Defendants appeal from a judgment on a jury verdict of $5,000 in favor of plaintiff in a personal injury action.

Questions Presented.

1. Whether the evidence brings the case within the general rule that one who voluntarily assumes a duty by affirmative conduct must exercise due care in performing that duty, Prosser on Torts, 194-197. 2. Should an instruction on unavoidable accident have been given?

Evidence.

Defendant Salvatore C. Orlando owned property through which El Camino Real ran. A cement irrigation pipe, 12 inches in diameter and 150-160 feet long, extended under the highway from one part of Salvatore's property to the other. Salvatore contracted with A. J. Peters & Sons for the latter to clear the pipe of debris which had collected therein. Plaintiff was employed by Peters as a laborer. Byrne was Peters' foreman in charge of the work. After unsuccessfully trying a different method for cleaning the pipe, Byrne devised the following one: A well driller's 'bucket' (a piece of pipe closed at one end) was pulled into the pipe until it met resistance. It was then backed out and emptied. At first a single winch truck was used for power. In order to pull from both sides it was necessary to disattach the cable from the truck on the one side, drive across the highway, and attach a pull on the other side. On the second day, Salvatore became dissatisfied with the time consumed in the operation and its cost. He suggested that he and his son, defendant Peter Orlando, could take care of the work on one side of the highway utilizing their tractor and eliminating the need for Byrne's presence in a supervisory capacity. Byrne agreed to this suggestion, it being understood that neither Salvatore nor Peter were being hired. Thereafter on one side of the highway the cable was pulled by a winch operated by the contractor's employee Price, and on the other side of the highway by a tractor operated by defendant Peter. After Salvatore and his son volunteered aid, Byrne took off one of the men on the crew. Byrne knew that the job was dangerous in the sense that all construction jobs are dangerous.

Plaintiff's job was to remove the debris from the bucket after each run on the pipe. He was stationed in a manhole or stand-pipe, wearing gloves to protect his hands. The morning of the accident (third day) Byrne took plaintiff and Price out on his pickup truck. He stayed long enough to set up the job, watch several runs on the irrigation pipe and see plaintiff empty the bucket several times. From this point on the testimony becomes sharply contradictory. Byrne testified he stopped giving signals and then started to leave for another job. Salvatore, standing at the manhole, took over the giving of signals five to ten minutes later. As Byrne was heading for his truck he heard plaintiff yelling. Byrne ran back to the manhole and found plaintiff in it with his hand wedged between the cable and the side of the manhole. Salvatore was there shouting angrily at his son Peter on the tractor. Byrne testified he was not giving the signals to the tractor and was not near the manhole at the time of the accident. Plaintiff testified that when he went into the manhole Salvatore was standing near it in a position to give signals and that Salvatore was to signal Peter. While in the manhole he could not see Salvatore. The bucket came to the manhole and stopped. He picked it up to empty it. Suddenly the tractor started, causing the cable to pull taut and it crushed plaintiff's hand between it and the side of the manhole. (It is conceded that plaintiff's hand was badly injured.) About a month later, he and one Santana talked to Salvatore and Peter about the accident. Salvatore admitted giving signals to Peter. Peter stated that his father gave the signals but because of trees they were difficult to see. Santana testified to the same effect. Salvatore and Peter did not deny making these statements. They merely could not remember making them.

Defendant Peter, aged 20, testified that he operated the tractor on signal from Byrne, that he could not see plaintiff in the manhole. It was Byrne, not Salvatore, that told him to operate the tractor, although he was not hired by or did not expect compensation from him or his company. At the time of the accident Salvatore was merely a spectator, standing 15 feet away from the manhole. It was Byrne who gave the signal that caused him to start the tractor, resulting in plaintiff's injury. Peter contradicted Byrne and claimed that the tractor was used from the very beginning of the bucket operation, rather than the winch being moved back and forth across the highway. Peter and Salvatore both denied that Salvatore had used angry words towards Peter immediately following the accident.

Salvatore testified that Byrne asked him if he had a tractor which could be used. He said he had. Byrne asked Peter to drive without asking Salvatore's permission. Salvatore did not discuss saving money with Byrne. Byrne gave the fatal signal. Salvatore was 15 feet away from the manhole. Salvatore did not give signals at any time nor participate in the job in any way.

1. Liability.

Defendants contend that they owed no duty to plaintiff because the plan of removing the debris was not defendants' and that plaintiff entered the stand-pipe and undertook to guide the bucket at Byrne's instance, and not at defendants'. This contention overlooks the theory upon which plaintiff is entitled to recover. The testimony of plaintiff and Byrne to the effect that Salvatore undertook the sole control of the tractor, supported, too, by the testimony of plaintiff and Santana as to the admissions of the defendants, was sufficient if believed by the jury (and it obviously was) to support the implied finding that defendants undertook the duty of operating the tractor and giving the necessary signals therefor, and failed to perform the duty with due care. The jury having found, in effect, that it was not Byrne's duty to give signals at this time and that he did not, the accident, under the evidence, could have occurred in only one of two ways, either of which would make defendants liable therefor. Either Salvatore gave the signal without observing plaintiff's precarious position (no one testified to seeing Salvatore give a signal), or he gave no signal and Peter started the tractor without it. In the latter event, as Peter was employed by and working for Salvatore at the time, Salvatore would be liable for Peter's negligence under the doctrine of respondeat superior.

Citing Been v. Lummus Co., 76 Cal.App.2d 288, 173 P.2d 34, to the effect that liability for handling dangerous instrumentalities arises from failure to use due care, and that such failure arises only when the circumstances show that the actor had reason to know that his act was likely to produce injury to the other party, defendants claim that the risk of harm here was the basic method devised by Byrne to clean the pipe and that therefore the negligence was that of Byrne, not defendants. Assuming the method to have been dangerous, nevertheless at least one proximate cause of the injury was defendants' failure to use due care in the operation of the tractor. He who undertakes to do an act must do it with reasonable care. See 38 Am.Jur. 659, Negligence, § 17; Restatement, Torts, §§ 283, 289. At best, Byrne would have been a joint tort-feasor with defendants, and, of course, the negligence of a joint tort feasor is not a defense. See 19 Cal.Jur. 664. The motivating force behind the cable was in the sole control of defendants. The suggestion that defendants did not know that pulling the cable without regard to what plaintiff was doing with the bucket at the moment would be dangerous, merits no discussion. If Salvatore signalled without looking at plaintiff, or if Peter started the tractor without a signal, they did 'an act which the actor as a reasonable man should realize as involving an unreasonable risk of causing an invasion of an interest of another. * * *' Restatement, Torts, § 284. Salvatore would be liable for defendant Peter's negligence. 'Apart from any basis of the family relation itself, one member of the family may of course be held responsible for the torts of another to the same extent as for...