Maia v. Security Lumber & Concrete Co.
| Decision Date | 01 May 1958 |
| Citation | 324 P.2d 657,160 Cal.App.2d 16 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Joseph W. MAIA, Jr., Plaintiff and Appellant, v. SECURITY LUMBER AND CONCRETE CO., Inc., Defendant and Respondent. Civ. 9188. |
Winters & Winters, Benicia, for appellant.
Dunnell, Herbert & Dunnell, Fairfield, for respondent.
This is an appeal by plaintiff from a judgment in favor of defendant in an action for personal injuries suffered by plaintiff as the result of the alleged negligence of defendant. The order denying his motion for a new trial, not being appealable, his purported appeal therefrom must be dismissed.
The defendant corporation had experienced mechanical difficulties in the operation of a conveyor belt at its cement-mixing plant in Vallejo, and its president, David Paganini, communicated with the Yuba Manufacturing Company concerning the matter. Yuba, who was plaintiff's employer, suggested that defendant inform it when the plant could be shut down, and an examination would then be made of the machinery. Thereafter, pursuant to a phone call from Paganini, plaintiff, upon instructions, accompanied one Carmer, a salesman for Yuba, to defendant's plant. At the time of their arrival, approximately 4 p. m., there was no regular work activity, nor was there any movement of equipment such as trucks or machinery. Plaintiff was taken to an employee of defendant by the name of Beaver, who in turn took him to the cement mixer. An examination was made of the conveyor at the base of the mixer which was approximately 60 feet high. As a part of their examination they cleaned some sand from the pawls. While plaintiff was continuing his inspection, another employee of defendant, one Amos Jackson, turned on the switch, thereby starting the conveyor belt. Plaintiff, who at that moment was leaning against it, was thrown headfirst into a chute and seriously injured. Beaver knew that it was the custom for Jackson to run the conveyor at the end of each day to remove any gravel remaining in the buckets, but he informed no one of the inspection which he and plaintiff were making at the top of the mixer, nor did he place any warning signs on the switchboard. Jackson, who was the regular operator, had been instructed not to start the machinery when anyone was around it or working on it. On the day of the accident he had not been informed that there was to be any repair work, and at the time he turned on the power he noticed no one. The switches were directly below a platform which obscured his view of the top of the mixer. Plaintiff made no inquiry as to whether the switches were pulled to a locked position, nor was he so advised by anyone at the plant. Since he had been informed the plant was shut down, he took it for granted that the switches were off.
Plaintiff makes two contentions on appeal: (1) That the court erred in giving certain instructions at defendant's request; and (2) that the court erred in admitting certain expert testimony.
The first instruction which plaintiff contends removed all duty from the defendant and owner of the machinery is as follows:
'There has been introduced into evidence and read to you in this case General Industry Safety Order No. 3276 of the Division of Industrial Safety.
'This safety order provides as follows:
'(b) Every prime mover or power driven machine equipped with lockable controls or readily adaptable to lockable controls shall be locked in the 'off' position during repair work. Machines or prime movers not equipped with lockable controls or readily adaptable to lockable controls shall be considered in compliance with this order when positive means are taken such as by disconnecting the equipment from its source of power, sealing the controls or other action which will prevent the prime mover or machine from being started. In all cases, caution signs with adequate wording shall be placed on the controls of the machines and prime movers during repair work.
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'You are instructed that the obligations and duties contained in this section in regard to locking machinery or disconnecting the same from its source of power before undertaking repairs, and the obligations in connection with the placement of caution signs during repair work are the obligations of the employer of the repair man and not obligations of the owner of the premises on which the repairs are undertaken, unless you find that repair work was undertaken by both the employee of the owner of the premises and of the repairer, in which case it would be the responsibility of both or all individuals working upon the repair of such machinery to comply with the provisions of the safety order which I have just read to you, and in such event, a failure on the part of either or both to comply with said safety order would constitute negligence.' (Instruction No. 33; emphasis added.)
Defendant's instruction number 19 below was also given by the court in this regard:
'You are instructed that it was the duty of ...
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