Kite v. Coastal Oil Co.

• Court: California Court of Appeals
• Writing for the Court: NOURSE; PARKER WOOD
• Citation: Kite v. Coastal Oil Co., 162 Cal.App.2d 336, 328 P.2d 45 (Cal. App. 1958)
• Decision Date: 25 July 1958
• Parties: Raymond Arthur KITE, Plaintiff and Respondent, v. COASTAL OIL COMPANY, C. L. Donovan, Doe I, Doe II, and Roe Company, a corporation, Defendants, Coastal Oil Company, Appellant. Civ. 22716.

Page 45

328 P.2d 45

162 Cal.App.2d 336

Raymond Arthur KITE, Plaintiff and Respondent, v. COASTAL OIL COMPANY, C. L. Donovan, Doe I, Doe II, and Roe Company, a corporation, Defendants Coastal Oil Company, Appellant.

Civ. 22716.

District Court of Appeal, Second District, Division 3, California.

July 25, 1958.

Rehearing Denied Aug. 19, 1958.

Hearing Denied Sept. 17, 1958.

Spray, Gould & Bowers, Los Angeles, for appellant.

Earl A. Barnes, Long Beach, for respondent.

NOURSE, Justice pro tem.

This is an action to recover damages for personal injuries. Defendant appeals from a judgment based upon the verdict of the jury awarding plaintiff the sum of $58,000.

The facts:

Defendant is owner of an oil well in the city of Signal Hill. The day of the accident in question a pumping or sucker rod in the well casing had broken. Upon discovering the break, defendant's vice president and production superintendent called Oil Well Service Company (hereinafter called Oil Well) requesting that they repair or replace the broken rod. Oil Well responded by sending a repair crew of four men to defendant's premises. ¹ The plaintiff was one of the members of this crew. The foreman of the crew was one Miller. Oil Well had been employed by defendant to service the well in question on a number of occasions over a period of several years and Miller had been instructed not to 'rock' the well.

In order to do the repair work, it was necessary that the service crew detach the upper end of the pumping rod from the outer end of the walking beam which activated it. This walking beam was pivoted near its center on a vertical pole called the Simpson pole and the inner end was attached by means of a rod called the 'Pittman arm' to an activating device which consisted of certain gears and a counterweight, which were in turn activated through a belt by a gasoline motor. The upper end of the Pittman arm rested in what is termed 'the tail bearing assembly.' This assembly consisted of a bearing on which the stirrup of the Pittman arm (a shaft connecting the two ends of the bridle which the upper portion of the arm consisted of), rested and over which was a cast iron cap which was designed to be secured by four bolts. When the Oil Well crew arrived at the well, the inner end of the walking beam was at its greatest height from the ground and the counterbalance was at the top of its cycle. In order that the broken pumping rod might be pulled from the well casing, it was necessary to have the walking beam disconnected from both the upper end of the pumping rod and from the activating machinery. In order to disconnect the walking beam from the activating machinery, the plaintiff caused the counterbalance, while still connected to the Pittman arm, to be lowered so that it was at the point nearest the ground in its cycle. ² After the broken pumping rod had been repaired, the service crew proceeded to attempt to put the well back in operation. In order to do this it was necessary to reconnect the pumping rod and the Pittman arm to the walking beam. This could be done in one of two manners. First, by connecting the Pittman arm to the counterbalance at its lower position and then by the use of certain tackle, pulling the pumping rod to a height where it could be connected to the walking beam. This operation would not require the use of the gasoline engine or any movement of the walking beam or the Pittman arm. The second method was to lower the outer end of the walking beam to where it could be connected with the pumping rods and then by rocking the counterbalance raise it to its vertical position where it could be connected with the Pittman arm. The service crew chose the second method.

This rocking operation was performed substantially as follows: By the use of the engine, the counterbalance was raised as high as possible and then allowed to drop free and swing in a pendulum fashion and when it started to swing back, power was again applied so as to raise it farther at the top of its swing, the purpose being to gradually bring it to a vertical position. While attempting this operation the cap on the upper half of the tail assembly broke; the Pittman arm was thus caused to fall and strike the plaintiff, causing him serious injury. Defendant's production manager witnessed the rocking operation and voiced no objection to it.

The evidence showed without conflict that no force was applied to the cast iron cap during the normal pumping operation of the well but that upon the breaking of the pumping rod, a heavy blow would be struck against the cap by the stirrup. The evidence was in conflict as to what force was applied to the cap through the rocking operation, but there was evidence that if the rocking operation were properly performed the stirrup would not be caused to strike against the cap and that the operation could be performed with the cap off without causing the Pittman arm to be disconnected from the walking beam and fall.

There was substantial evidence to prove that one of the four bolts that secured the cap at the tail assembly and which held the Pittman arm in place on the upward thrust of the arm, was missing and had been for some time; that one bolt was not secured by a nut and that another permitted about 3/8 of an inch play; that if three bolts on the cap had been secured, it would have withstood any upward thrust placed upon it by the rocking motion.

There was evidence that the cap was visibly loose and that this condition was noticed by certain of the crew although the plaintiff denied noticing it; that the rocking operation was known to be dangerous and that plaintiff, who at the time of the accident was operating the clutch, stood in a position known to be dangerous although he might have stood in a safe position. To the contrary, there was evidence that less than 30 days prior to the accident, the entire pumping equipment had been overhauled and inspected and at that time there were no loose or missing bolts in the tail assembly and that it was the duty of the employees of the defendant to each day inspect all bolts and tighten all loose ones.

The evidence was in conflict as to whether plaintiff was the one who performed the rocking operation and as to whether or not he had been instructed by his foreman not to do so. It is undisputed that at the time of the accident plaintiff was standing on the ground directly in line with the Pittman arm and operating the clutch on the engine so as to give impetus to the swing of the counterweight in its pendulum movement. The issues submitted to the jury were negligence of the defendant, contributory negligence of the plaintiff and damages.

During the deliberations of the jury, the trial judge advised counsel that the bailiff had informed him that the jury was ready to return a verdict but they were not agreed upon the amount of the verdict and that he intended to poll the jury on two separate questions: a. the question of liability and b. the question of damages. Thereupon counsel for the defendant objected to that procedure and the trial judge stated that he would first poll the jury on the general verdict and that if the required number did not respond to that verdict, he would poll the jury separately upon the questions above noted. To this procedure, counsel for the defendant again objected. Thereupon the jury was returned to the courtroom and a verdict signed by the foreman was handed to the clerk. After this was read to the jury, the jury was polled as to whether or not the verdict as read was their verdict. Upon this poll, jurors 1, 2, 5 and 12 replied in the negative. The remaining jurors replied in the affirmative. The court then polled the jury as to whether they found against the defendant upon the issue of liability. Upon this poll, jurors 1, 2 and 5 answered in the negative. After this poll was taken the court stated:

'Now will you poll them as to amount.

'Regardless of how you may have voted on the issue of liability we want to know if this is your verdict as to amount.'

Upon this poll, jurors 5 and 12 voted in the negative. It is evident from the facts we have just recited that the jury did not reach a verdict.

Under section 7 of article I of the Constitution of this State, a verdict may not be rendered in a civil action by less than three-fourths of the jury. Section 618 of the Code of Civil Procedure provides in part as follows: '* * * Either party may require the jury to be polled, * * * If upon such inquiry or polling, more than one-fourth of the jurors disagree thereto, the jury must be sent out again, * * *'. When in the present case, four of the jurors upon the poll taken on the general verdict, declared that it was not their verdict, it was clearly the duty of the trial court to send them back for further deliberations and we know of no procedure which authorized him to, in open court, take what amounted to special verdicts upon the issues submitted to the jury. However, in the present case, the result of the second two polls merely confirmed the first. Jurors 1, 2 and 5 stated that they did not find the defendant liable. Necessarily this included a finding by them that the plaintiff was not entitled to any damages. Upon the poll of the jury as to the issue of damages, juror no. 12 joined with jurors 1, 2 and 5 and stated that the verdict as read was not his verdict. The result is that under any view of the matter, only eight jurors had agreed upon the verdict as signed by the foreman and hence there was no true verdict.

Throughout the briefs here and apparently in the trial court, defendants have taken the position that the service crew were called upon to repair the entire pumping apparatus of the well in question and that as the tail assembly, the breaking of which permitted the Pittman arm to fall and strike the plaintiff, was part of that equipment, the rule that an owner must furnish an independent contractor a safe place to work does not apply....