Large v. Williams

• Court: California Court of Appeals
• Writing for the Court: VAN DYKE
• Citation: Large v. Williams, 154 Cal.App.2d 315, 315 P.2d 919 (Cal. App. 1957)
• Decision Date: 08 October 1957
• Parties: Nellie LARGE, substituted in the place and stead of George Large, deceased, and Wayne Large, by his substitute Guardian ad litem, Nellie Large, Plaintiffs and Respondents, v. A. R. WILLIAMS and Vera Williams, his wife, Defendants and Appellants. Civ. 9117.

Page 919

315 P.2d 919

154 Cal.App.2d 315

Nellie LARGE, substituted in the place and stead of George Large, deceased, and Wayne Large, by his substitute Guardian ad litem, Nellie Large, Plaintiffs and Respondents, v. A. R. WILLIAMS and Vera Williams, his wife, Defendants and Appellants.

Civ. 9117.

District Court of Appeal, Third District, California.

Oct. 8, 1957.

Rehearing Denied Oct. 30, 1957.

Hearing Denied Dec. 4, 1957.

Hansen, McCormick, Barstow & Sheppard by R. A. McCormick, Fresno, for appellants.

Robert K. Byers and Bruce M. Jacobs; Gilroy, for respondents.

VAN DYKE, Presiding Justice.

This is an appeal from the judgment entered upon a jury's verdict in a personal injury action brought by George Large for himself and as guardian ad litem of his minor son. George died during the pendency of the litigation and by stipulation and court order Nellie Large, mother of the minor and surviving wife of George, was substituted. The minor, Wayne, was injured when a large metal boiler frame, weighing between two and three hundred pounds, fell upon him.

Appellants Williams owned property on which they were conducting a motel consisting of a number of cabins. They also owned an open lot contiguous thereto and in the rear of the cabins. Wayne was three years of age. His parents were renting one of the motel units. At the time of the accident there were 12 or 14 children living in the motel cabins, most of them older than Wayne, their ages going up to 10 or 11 years. The children of the tenants generally played in the area behind the cabins and in this area appellants had deposited the metal frame which was made of welded three-inch pipe and measured about 6 1/2' X 3' X 5'. In the year preceding the accident appellants had moved the frame out of the shower and storage room of the motel and placed it in the rear of the cabins where it had remained until the day of the accident. It appears that a number of children, including Wayne, were playing with it as they had done before and in their play moved it about by turning it over. Whether it was actually on the motel premises or over on the adjoining lot was uncertain from the evidence, but at any rate while the children played with it it fell on Wayne and injured him. The evidence showed that appellants were chargeable with knowledge that the children of the tenants played in the area where the frame lay and that it resembled in appearance the metal frameworks often seen on playgrounds. There was no testimony that appellants knew the children were actually playing with it in such a way as to move it about and turn it over.

The complaint as originally filed charged that the defendants negligently placed the framework in the rear of the motel and negligently allowed it to remain there until Wayne was injured; that defendants had, or were chargeable with, knowledge that it was unsafe, dangerous and attractive to children; that children of the tenants were accustomed to play about the premises to the knowledge of defendants; that Wayne was too young to appreciate the danger he incurred by playing near the framework and that his injuries were caused by the negligence of the defendants in carelessly leaving the framework accessible to children; that Wayne was damaged generally in the sum of $50,000; that plaintiff George Large through the defendants' negligence became obligated to pay 'for doctors, medicines and medical treatments in a total amount presently unknown' and that he would ask leave to appropriately amend the complaint when the total sum could be ascertained. The complaint was never amended in that respect, but proof was made without objection of expenses incurred for the services of doctors, surgeons, for hospitalization and hospital care. Evidence was also introduced that, lacking money for the hire of special nurses at the hospital, Wayne's mother nursed and cared for him there and at her home; that in so doing she worked 24 hours a day. A series of operations and a series of hospitalization periods was made necessary by Wayne's injuries, with intermediate home care.

Appellants first maintain that there is a fatal variance between the proof and the allegations of the complaint. They refer to certain allegations that the defendants had negligently so placed the framework on the ground that slight application of force was liable to cause it to lose its position and equilibrium and tumble or fall to a new position and that at the time of the accident the framework did lose its equilibrium and fall upon Wayne while he and other children were playing upon and about it. Appellants say that the gravamen of plaintiffs' complaint, therefore, was that defendants themselves placed an inherent and unsafe instrumentality in such a position that when plaintiff played upon it or about it the apparatus lost balance and fell upon him. Appellants then assert the evidence was at variance with these specific allegations and showed that appellants had removed the framework from its place of use in the laundry room and laid it flat on its side next to the back wall of the storeroom; that they never thereafter saw it or touched it until some time after the accident when it was found in the field immediately behind the cabin occupied by plaintiff and his family some 15 or 30 feet from where defendants had stored it. We think this is an unwarranted limitation of the cause of action stated. The pleading and the proof both show a right of recovery based upon negligence in allowing a dangerous instrumentality to lie about unsecured and unguarded where the tenants' children customarily played. If, when the accident occurred, the framework was lying within the area of the motel premises, then the children of the tenants playing about it were invitees to whom appellants owed a legal duty in the capacity of invitors. If, on the other hand, it was then lying on the contiguous lot in the rear of the motel premises and in a technical sense the children were trespassing by going...