Rodin v. American Can Co.

• Decision Date: 10 June 1955
• Docket Number: No. 16361,16361
• Citation: 284 P.2d 530,133 Cal.App.2d 524
• Parties: John RODIN and Earl Kelley, Plaintiffs and Appellants, v. AMERICAN CAN COMPANY, a corporation, Larsen & Larsen, Inc., a corporation, Vince Santelmo and George Fortier, Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

Page 530

284 P.2d 530

133 Cal.App.2d 524

John RODIN and Earl Kelley, Plaintiffs and Appellants, v. AMERICAN CAN COMPANY, a corporation, Larsen & Larsen, Inc., a corporation, Vince Santelmo and George Fortier, Defendants and Respondents.

No. 16361.

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

June 10, 1955.

Rehearing Denied July 8, 1955.

Hearing Denied Aug. 3, 1955.

Forrest M. Greenberg, Miller, Kroloff & Brown, Stockton, for appellants.

Barfield & Barfield, San Francisco, for respondents American Can Co. and Vince Santelmo.

Roos & Jennings, San Francisco, for respondents Larsen & Larsen and George Fortier.

BRAY, Justice.

A judgment of nonsuit in favor of all defendants based upon plaintiffs' opening statement was entered. Plaintiffs appeal.

Questions Presented.

1. Did the opening statement show a cause of action against either defendant: (a) For negligence? Corollary to this question--was res ipsa loquitur applicable? (b) For violation of express rules of law?

2. Did the trial court abuse its discretion in denying plaintiffs' request to enlarge upon the opening statement?

Record.

Each plaintiff brought an action against all defendant for personal injuries predicated, in a first count, on defendants' alleged negligence, and in a second count on defendants' alleged wilful misconduct through failure to comply with certain safety orders of the Industrial Accident Commission. The gist of plaintiffs' opening statement follows. Defendant American Can Company entered into a contract with defendant Larsen & Larsen, Inc., general contractors, for the construction by the latter of a plant for the former at Stockton. Defendant Larsen let a subcontract to Pahl-Harry Co., plumbing contractors, for the plumbing work. Plaintiffs were employees of the latter company and at the time of the accident were working on this particular job. Their foreman instructed them to repair some pipes at the top of the building. Defendant Can Company owned a portable elevator or hoist, called a 'telescoper.' It is electrically operated. One of the employees of defendant Can Company had given permission to defendant Larsen and Pahl-Harry Co. to use it. The Can Company not only gave such permission but saw employees of the two mentioned companies actually using it. Defendant Larsen likewise gave permission for its use by Pahl-Harry employees and saw plaintiffs using it. It did not comply with the safety rules of the Industrial Accident Commission in that it lacked several devices thereby required. Plaintiffs had used the elevator once or twice before but had not been instructed how to use it. To get to the pipes which needed repairing, plaintiffs moved the elevator into position. They then went up in the elevator without any difficulty. They finished their work there (apparently standing on the elevator platform) and started to descend. The elevator is operated by three buttons. One is pressed to go up, one to come down, and a third to stop. As the elevator descended it hit one of the girders on the building. Plaintiff Rodin yelled 'Stop it.' Plaintiff Kelley pressed the 'stop' button. It would not work. There was no emergency equipment as required by law to take care of the situation. Although plaintiff Kelley pressed the 'stop' button the elevator kept on going down and pressing against the girder. Finally the elevator fell over backwards, throwing both plaintiffs 18 or 20 feet to the concrete floor, seriously injuring both. Although plaintiff Kelley tried vainly to stop the elevator, the equipment did not work. There should have been emergency equipment provided. Neither the owner, defendant Can Company, nor the general contractor, defendant Larsen, provided any operator to run the elevator, nor were the men who were using it given any instructions, but were left on their own in its use. The facts related will show negligence and a wilful failure to comply with the section of the law applying to this type of equipment.

1. Were Causes of Action Stated?

(a) Negligence.

(1) Against defendant American Can Co.

It owned the telescoper. The complaint charges that it and the other defendants so carelessly and negligently did 'keep, maintain, control and operate' the telescoper 'as to cause' plaintiffs 'to be hurled from said elevator and onto the pavement * * *.' In the opening statement it is stated that defendant Can Company owned the telescoper, gave permission to both defendant Larsen and plaintiffs' employer Pahl-Harry Co. to use it, and saw employees of the two companies using it. Leaving aside the question of compliance with safety rules, which will be discussed later, the statement charges the accident to the failure of the elevator to stop when the proper button was pressed after it struck a girder. There is no claim that defendant Can Company knew of the defective condition of the elevator, if it was defective. Unless res ipsa loquitur applies there is no showing that defendant did 'keep, maintain, [or] control' the machine negligently. The evidence shows that it did not 'operate' it.

Primarily, what duty did defendant Can Company owe plaintiffs? That duty is stated in Restatement of Torts, § 388, p. 1039:

'One who supplies directly or through a third person a chattel for another to use, is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be in the vicinity of its probable use, for bodily harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier

'(a) knows, or from the facts known to him should realize, that the chattel is or is likely to be dangerous for the use for which it is supplied;

'(b) and has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition; and

'(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be so.'

See Martin v. Food Machinery Corp., 100 Cal.App.2d 244, 223 P.2d 293, where the above rule was applied to the owner of a building under construction, who built a scaffold adjacent to it, which broke, injuring the plaintiffs who were employees of the general contractor.

Applying the rule to the facts of our case, it is obvious that there is no showing (in the absence of res ipsa loquitur) of the requirements of (a), (b), or (c). There is no showing that defendant Can Company knew or should have known that the machine was dangerous or likely to be dangerous. There is no showing of what was wrong with the telescoper.

Another way of expressing defendant Can Company's duty here is the following from Miller v. Pacific Constructors, Inc., 68 Cal.App.2d 529, 545, 157 P.2d 57, 65: 'The general rule in that regard is that an owner or occupier of premises, who, by invitation express or implied, whether the invitation is pursuant to a written contract or otherwise, induces, or knowingly permits, a workman to enter the premises for the performance of duties mutually beneficial to both parties, is required to use reasonable care to protect the workman by supplying him with a reasonably safe place in which to work and to furnish and maintain appliances in connection therewith which are reasonably safe for the purposes embraced therein. [Citation.]' (Emphasis added.)

Here the statement contained no showing that the telescoper as furnished by defendant was not reasonably safe for the purpose for which it was intended to be used.

Res Ipsa Loquitur.

This brings us to the question of whether res ipsa loquitur applies, for if it does, then it would be the duty of defendant to explain the cause of the accident.

The conditions under which res ipsa loquitur applies are: (a) 'There is a basis of experience, either common to the community or brought out in evidence, from which it may reasonably be concluded that the accident is of a kind which does not ordinarily occur unless someone has been negligent.' (b) 'It must be caused by an agency or instrumentality within the exclusive control of the defendant.' (c) 'It must not have been due to any voluntary action or contribution on the part of the plaintiff.' Prosser, 37 Cal.L.Rev. 233; Prosser on Torts, p. 295; Ybarra v. Spangard, 25 Cal.2d 486, 489, 154 P.2d 687, 162 A.L.R. 1258.

Were these conditions present here? We think they were. (a) Ordinarily an elevator, even a portable one (this had devices to fasten the elevator shaft to the ground so that the structure will not move), properly operated, will stop when the 'stop' button is pressed. Even though the elevator struck a girder, it should respond to the pressing of the 'stop' button unless the girder struck some part of the mechanism connecting with the 'stop' button. Inasmuch as under the nonsuit rules we must indulge in every reasonable inference from the plaintiffs' statement favorable to them, and because plaintiffs were later denied the opportunity to amplify their statement, we must assume that the striking of the girder did not affect the 'stop' button mechanism. Therefore the owner and supplier of the telescoper must explain what caused the 'stop' button to fail to work. A situation similar to what happened here occurred in Kiernan v. Herbert M. Baruch Corp., 20 Cal.App.2d 289, 66 P.2d 748. There, under one version of the accident it was caused by a piece of marble which was being held by the plaintiff while riding in a construction elevator, catching on the timber of the shaft. The elevator dropped before it could be stopped with the brake. The court stated that the evidence left in doubt whether the operator of the elevator was negligent or the apparatus failed. It was then held that the doctrine of res ipsa loquitur was properly applied.

(b) The elevator was in the exclusive control of defendant Can Company. Even though it had been turned over to the use of Larsen and Pahl-Harry Co., the control of the elevator itself was in...