Sloboden v. Time Oil Co.

• Decision Date: 17 March 1955
• Citation: 281 P.2d 85,131 Cal.App.2d 557
• Court: California Court of Appeals
• Parties: Alex SLOBODEN, Plaintiff-Respondent, v. TIME OIL COMPANY, a corporation, Defendant-Appellant. Civ. 16216.

Page 85

281 P.2d 85

131 Cal.App.2d 557

Alex SLOBODEN, Plaintiff-Respondent, v. TIME OIL COMPANY, a corporation, Defendant-Appellant.

Civ. 16216.

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

March 17, 1955.

Frederick M. Van Sicklen, James C. Calkins, Alameda, for appellant.

Hoberg & Finger, San Francisco, Russell F. King, Richmond, for respondent.

PETERS, Presiding Justice.

In this action for personal injuries the jury returned its verdict in favor of defendant, Time Oil Company. Plaintiff's motion for a new trial was granted 'on the grounds that erroneous instructions were given at the time of the trial.' Defendant appeals.

It is conceded that the trial court gave, upon the request of defendant, a partially erroneous instruction on the doctrine to assumption of risk. Appellant argues its appeal as if the issue were whether the giving of this erroneous instruction was prejudicial, and assumes that the burden is on respondent to show that it was. That is not the law. Quite to the contrary, the burden is upon appellant to show that such erroneous instruction could not possibly have misled or confused the jury. The proper rule, supported by many cases, is stated as follows in 4 Cal.Jur.2d, p. 476, § 598:

'The granting or denial of a new trial is a matter resting so largely in the discretion of a trial court that it will not be disturbed except upon a manifest and unmistakable abuse. This is especially so when the discretion is used in awarding a new trial, for this action does not finally dispose of the matter, and it is only in rare instances and on very strong grounds that the reviewing court will set aside such an order * * *.

'* * * But so long as a reasonable or even fairly debatable justification under the law is shown for the action taken, that action will not be set aside, even if, as a question of first impression, the appellate court might feel inclined to take a different view.'

In Bolton v. Martin, 126 Cal.App.2d 178, at page 180, 271 P.2d 991, at page 992, in discussing an appeal from an order granting a new trial because of an erroneous instruction, this court stated:

'Thus, on this appeal, the action of the trial court in granting the motion for a new trial because of the giving of the challenged instruction can be reversed only if, assuming the facts warranted instructions on last clear chance at all, the questioned instruction was absolutely accurate and under no reasonable interpretation could possibly have misled or confused the jury. All presumptions favor the order as against the verdict. It is not necessary to find, in order to uphold the trial court, that the giving of the instruction was prejudicial to the plaintiffs. If the challenged instruction was erroneous in any degree, or even if it is only 'fairly debatable' that such instruction may have been misleading, the broad discretion of the trial court may not be disturbed, even if this court, had the question been presented to it in the first instance, would have found the error minor, and would not have granted the motion. Thus, the burden on the one attacking such an order is a very heavy burden indeed.' See also Conroy v. Perez, 64 Cal.App.2d 217, 148 P.2d 680; Scott v. Renz, 67 Cal.App.2d 428, 154 P.2d 738; Mazzotta v. Los Angeles Ry. Corp., 25 Cal.2d 165, 153 P.2d 338; Pettigrew v. O'Donnell, 32 Cal.App.2d 502, 90 P.2d 93.

Tested by these standards, it is obvious from the facts that it is at least 'fairly debatable' whether the erroneous instruction 'may have been misleading.' That being so, the order must be affirmed.

Alex Sloboden, the plaintiff and respondent, in March of 1952, when injured, was employed as a welder by the Richmond Tank Car Co. ¹ He had worked for that company for 2 years, and was a welder of 10 years' experience. The Time Oil Company, the appellant, owned some automotive equipment, including gasoline tank trailers, that occasionally needed welding repair. Appellant, in 1949, approached the Richmond Co. to do this work. Richmond Co. gave appellant an estimate on such repairs, which estimate required Richmond Co. to degas the tanks before welding. This is necessary as a preliminary safety precaution before welding. Tank trailers are degassed by steaming them for 7 or 8 hours. Appellant had just purchased a steam cleaning machine to be used for this purpose. Accordingly, the superintendent of appellant requested a welding estimate without Richmond Co. performing the steam cleaning of the equipment. Such an estimate was given. It was agreed between the appellant and Richmond Co. that appellant would steam clean all tank trailers to be repaired so as to make them gas free before delivering them to Richmond Co. The oral contract provided that appellant would be billed only for the welding, and the employees of appellant were instructed 'to be certain to gas free this equipment and deliver them ready for welding to Richmond Tank Car Company.' Appellant, prior to this time, had paid out large sums to have its equipment steam cleaned, and had purchased the steam cleaning machine to save itself that expense.

At the time this agreement was entered into nothing was said about any tests to be made by either of the contracting parties to determine whether the tanks were gas free. As a matter of fact, appellant had no equipment to make such a test. The Richmond Co. did possess a gas indicator, which is a rod about a yard long which is inserted into the tank, and a reading obtained from a battery-operated instrument indicating the degree of concentration of explosive vapors. This three-foot wand could not effectively reach all portions of the tank's interior. A specified employee of Richmond Co. was delegated the duty of testing all tanks undergoing welding repair for gas, and no welding was performed by the welders until given a clearance by this employee.

Pursuant to the 1949 agreement, appellant sent 10 or 12 tank trailers to Richmond Co. for welding, always steam cleaning the trailers before sending them to Richmond Co. On the morning of March 19, 1952, appellant's shop foreman wanted a particular tank trailer repaired. He assigned two employees to steam clean the tank so that when it was delivered to Richmond Co. it would be ready for welding. These employees testified that they steam cleaned the various compartments in the tank for a period of 7 or 8 hours. Although the shop foreman of appellant knew that after steam cleaning it was a good safety measure to allow the equipment to ventilate for some time, in this instance, immediately upon the conclusion of the steam cleaning operation, he ordered the equipment delivered to Richmond Co. Appellant's shop foreman accompanied the equipment, and, upon arrival at the Richmond Co. plant, told the foreman of the latter company, apparently in the hearing of respondent, that the equipment had been 'steam cleaned good.'

The gas testing employee of Richmond Co. tested the tank for gas, and found the portions tested gas free. As already stated, the testing equipment was unable to reach all portions of the compartments of the tank. Respondent, who knew that he was not supposed to weld until given a clearance by the testing employee, asked that employee if he could proceed to weld and was told that he could. On this particular job, welding was required on cracks near the plugs on the top of the tank leading to the front and rear compartments. Respondent climbed up on the tank with his equipment and welded the cracks in the first compartment without incident. He then started to weld the cracks in the second compartment when an explosion occurred because of the explosive vapors still in the tank. Respondent was hurled to the ground and suffered severe injuries.

Respondent's complaint charged appellant with negligence in inspecting and delivering the tank trailer containing volatile gasses to Richmond Co., and in not giving notice of its condition. Appellant denied this allegation and affirmatively pleaded the defenses of contributory negligence and assumption of risk. The jury found for appellant. The motion of respondent for a new trial was granted, the order specifying that the jury had been erroneously instructed.

The following instruction on the doctrine of assumption of risk, at the request of appellant, was given by the trial court:

'There is a legal principle commonly referred to by the term 'assumption of risk,' which now will be explained to you:

'One is said to assume a risk when he freely, voluntarily and knowingly manifests his assent to dangerous conduct or to the creation or maintenance of a dangerous condition, and voluntarily exposes himself to that danger, or when he knows, or in the exercise of ordinary care would know, that a danger exists in either the conduct or condition of another, or in the condition, use or operation of property, and voluntarily places himself, or remains, within the area of danger.

'One who has thus assumed a risk is not entitled to recover for damage...