Murphy, Wright By, v. City of San Bernardino High School District

• Decision Date: 17 November 1953
• Citation: 263 P.2d 25,121 Cal.App.2d 342
• Court: California Court of Appeals
• Parties: WRIGHT, by MURPHY et al. v. CITY OF SAN BERNARDINO HIGH SCHOOL DIST. et al. Civ. 4494.

Page 25

263 P.2d 25

121 Cal.App.2d 342

WRIGHT, by MURPHY et al. v.CITY OF SAN BERNARDINO HIGH SCHOOL DIST. et al.

Civ. 4494.

District Court of Appeal, Fourth District, California.

Nov. 17, 1953.

Wilson & Wilson, San Bernardino, for appellants.

Albert E. Weller, Harold M. Manell, Ward O. Mathews, Swing & Gillespie, San Bernardino, for respondent.

BARNARD, Presiding Justice.

This is an action for damages for personal injuries sustained by the minor plaintiff while a member of a physical education class conducted by the school district.The teacher of the class, Ralph Simpson, was originally made a defendant but the action was dismissed as to him and went to trial as against the school district only.At the conclusion of plaintiff's evidence the court granted the district's motion for a judgment of nonsuit, and the plaintiffs have appealed.

There is no dispute as to the facts.Gerald Wright, a 16-year old junior in this high school, was a member of the tennis and handball class conducted by the district.This class was composed of members of the Varsity tennis team, the team's managers and those who aspired to make the team.Wright, who wore rimless glasses, had been a member of the class that year and the year before.

On the day in question the teacher, who acted as tennis coach, needed the usual class time to make the bracketings for a tennis tournament, a school activity, which was to be held that afternoon.He met the class at the beginning of the period and told them there would be no supervised activity that morning; that they were to remain in the vicinity of the dressing room or foyer of the gymnasium 'until we could work out the bracketing'; and that roll would be taken at the close of the period.He then went into the coach's office, which opened on the foyer with a dutch door the lower half of which was closed, and was working on the bracketing with the assistance of some members of the class.During the period he passed several times through the foyer and knew that there were boys in the gymnasium, but did not enter that room to see what they were doing.

After the teacher's announcement several of the boys put on tennis shoes and entered the gymnasium to play handball.This was done by batting a tennis ball against one wall with their hands.Wright and another boy were playing this game on the west half of the gymnasium floor and six other boys were playing the same game on the east half.Other boys were sitting around watching the activities.

Sometime during the class period two boys, Evans and Griffin, started a different game between the two handball games.In this game Evans would throw a tennis ball toward Griffin, who would bat the ball back with a tennis racquet swung like a baseball bat.The ball was thrown 'hard' at times.This was not the usual manner of playing tennis, and had not been previously used during a class period.During the course of his handball game Wright would at times come within two or three feet of the line of play between Evans and Griffin.When the shower bell rang, near the close of the period, Wright was three or four feet to the west of the line of activity between Evans and Griffin.As the bell rang, he turned and ran toward the door leading to the shower, thus stepping into the line of flight of a tennis ball which had just been thrown by Evans.The ball struck his right eye, breaking his glasses, as a result of which his eye was severely damaged.The tennis ball used in the Evans-Griffin game was like those being used in the handball games, being about 2 1/2 inches in diameter and covered with a cloth fabric with a fuzzy surface.

Wright testified that he saw Evans and Griffin enter the gymnasium and start playing; that he knew the ball was being thrown by Evans toward Griffin, and saw the ball go by a good many times; that he knew there was an established line of play between them, and did not believe there was any risk of being hit by a ball thrown along that line of play; that he did not believe there was any particular risk of injury involved in the game he was playing, or about the game being played by Griffin and Evans; that he was an experienced tennis player, having played an hour every day during one school year and most of another, while wearing his glasses; that he could not play 'tennis or any game' without his glasses; that he knew there was some slight risk of injury from playing with glasses on, but this was one of the ordinary risks which he knowingly accepted; that when the shower bell rang he turned and started running, without looking to see where the ball was, as he was in a hurry to take a shower; that nothing had occurred which led him to believe that the Evans-Griffin game had been discontinued; that there was nothing to prevent him from seeing Evans when he first turned to run; and that he saw Evans as he was running and after the ball was thrown.

The appellants contend that the evidence was sufficient to require that the issues of negligence and proximate cause be submitted to the jury; that the respondent was under a duty to supervise the boys of this class; that the evidence amply discloses a breach of this duty; and that such negligence was the proximate cause of the injuries because proper supervision would have prevented Evans and Griffin from starting their dangerous activity in the first place, and because a person of ordinary prudence would have stopped the game.It is argued that the jurors might have concluded that this 'game' was dangerous,...