Varas v. Barco Mfg. Co.

• Decision Date: 28 June 1962
• Citation: 22 Cal.Rptr. 737,205 Cal.App.2d 246
• Court: California Court of Appeals
• Parties: Roberto VARAS, Plaintiff and Appellant, v. BARCO MANUFACTURING COMPANY, and Fornaciari Company, Defendants and Respondents. Civ. 25777.

Page 737

22 Cal.Rptr. 737

205 Cal.App.2d 246

Roberto VARAS, Plaintiff and Appellant, v. BARCO MANUFACTURING COMPANY, and Fornaciari Company, Defendants and Respondents.

Civ. 25777.

District Court of Appeal, Second District, Division 3, California.

June 28, 1962.

Ernest George Williams, Los Angeles, for appellant.

Jarrett & Morgan, Los Angeles, and Tuller, Ruston & Perez, Fullerton, for respondents.

FORD, Justice.

This is an appeal by the plaintiff from a judgment of nonsuit in an action to recover damages for personal injuries suffered by him while using a machine to compact earth.

The first cause of action of the third amended complaint was founded on allegations of negligence on the part of the defendants. The second and third causes of action were based on theories of warranty. As to the warranty causes of action, the trial court granted a nonsuit on the grounds that there was no evidence of an express warranty on the part of the defendant Fornaciari Company and that there was no evidence that the plaintiff gave notice to either of the defendants of the breach of any implied warranty pleaded. (See Vogel v. Thrifty Drug Co., 43 Cal.2d 184, 187-188, 272 P.2d 1.) The plaintiff does not appear to challenge the correctness of the ruling as to the second and third causes of action. Consequently, this opinion is concerned only with the cause of action in which negligence on the part of the defendants was alleged.

The defendant Barco Manufacturing Company manufactured an earth compactor known as a 'Barco Rammer.' It sold the machine involved in the present case to the defendant Fornaciari Company, a partnership. The latter leased the machine to the plaintiff's employer, McDonald Brothers. In the course of his use of the machine the plaintiff suffered burns. As set forth in the pretrial conference order, some of the issues were whether there was negligence on the part of the manufacturer in the design of the machine and on the part of the defendant Fornaciari Company in the maintenance thereof and whether the machine was an inherently dangerous instrumentality when used for the purpose for which it was designed. One of the contentions of the plaintiff was stated to be that there was negligence on the part of each defendant which consisted of a failure to test and inspect the machine. The matter of proximate causation was also at issue.

In their brief the defendants acknowledge that the manner in which the Barco Rammer operated to compact earth is accurately described in the plaintiff's opening brief. That description is as follows: 'The Barco Rammer is an earth-tamping device, which operates, generally, much like a child's pogo stick; its primary purpose is to tamp the earth to harden the ground. It is gasoline powered and is operated by one man standing on the ground and holding the Rammer in an upright position so that the piston tamps the surface of the earth. The machine has a small gas tank attached to it, and gasoline is introduced into an internal combustion chamber by gravity where it is ignited by a spark plug. The resultant explosion within the chamber causes the pistons to move up and down and thereby compact the earth on the down stroke. After contacting the ground, the machine leaps into the air approximately fourteen inches and comes down again some 50-60 times per minute.' The operator, standing on the ground, holds onto the machine by placing his hands on a semicircular handle bar which extends toward him from the machine.

There will be stated herein evidence which gave support to the plaintiff's case. The accident occurred on March 28, 1957. The plaintiff testified that he went to work for McDonald Brothers two or three months before the accident and that he started to use the Barco Rammer a week or two later. He always used the same machine. His face would be about 18 inches from the top of the cap on the gasoline tank while the machine was stationary, each time the machine would go up and down, he would be sprayed with gasoline and oil which would come both from the small hole in the center of the cap and from the vicinity of the part where the threads for the cap were. The fluid would get on his hands and face and the front part of his body. He would work without wearing clothing above his waist. He carried a cloth for use in drying his body. When the cap would get loose, 'a little bit more' fluid would escape. He further testified as follows: 'Q. You say, sir, that during the entire two or three months that you used this machine you always had to tighten the cap about every 15 or 20 minutes? A. Not all the time. Q. When were the times that you did not have to tighten it? A. When I was working on soft dirt. Q. It would then be a longer period of time, perhaps 30 minutes? A. I am not sure.' The plaintiff said that other than tying a piece of cloth on the handle of the cap, he did nothing to stop or prevent the gasoline from getting on his person. The cooling vents on the machine became hot when it was used.

On cross-examination, the plaintiff testified in part as follows: 'Mr. Varas, you told us on direct examination that at some time during the operation of the machine you saw some gasoline coming out of a hole in the cap? A. Of course, because when one uses it, it moves and it sprays out from there. * * * Q. Did you see any gasoline or mixture of gasoline and oil come out of any hole in that gasoline cap at any time while you were operating it? A. Yes, and you could note it because you could note that immediately in your hands. Q. Would it be correct to say that you did not see it spray out but only noticed moisture on your hands? A. Well, it is impossible to see the oil when it comes toward you. Q. In other words, you never saw it come from the machine but only saw it on yourself? Is that correct? * * * THE WITNESS: Well, I do not know.'

The accident happened in the afternoon. The plaintiff testified that, after lunch, when he was using the machine, 'gas' came out of the little hole in the cap. About 20 minutes before the accident, the cap became loose; he tightened it and continued to operate the machine. He further testified as follows: 'Q. After lunch were you involved in a fire? A. Yes. Q. What part of your body was on fire? A. Well, I could not exactly see how my body was but from what I felt afterwards, I felt it in my body above my waist. Q. Did you see any flames? A. Yes. Q. Where did you see the flames? A. In my hands. Q. Did you see flames on any other part of your body. A. It is impossible to tell you exactly where something like that is or where something isn't at a time like that. * * * Q. Do you recall, if at all, if your hands were on the machine when you saw yours hands burning? A. Yes. Q. On what part of the machine were your hands? A. A place where it's curved, where one has to get hold of the machine to operate it. * * * Q. Well, did you hear any noise just before you saw your hands on fire? * * * THE WITNESS: Yes. Q. BY MR. MEPHAM [counsel for plaintiff]: What kind of noise did you hear? A. Something like that--phoof--that's all. * * * Q. When you saw your hands on fire, did you notice if any part of the machine was burning? A. No.' In the course of the cross-examination, the plaintiff stated as follows: 'Q. BY MR. RUSTON [counsel for defendants]: Now, Mr. Varas, you did not see the fire start, did you, sir? A. No. Q. You did not see what happened to cause the fire at the time it started, then? A. The only thing I heard was the noise. Q. Would you say that noise sounded like an explosion? A. I cannot--I do not know that.'

R. A. Gibbs, an employee of the defendant Fornaciari Company, was called as a witness by the plaintiff pursuant to the provisions of section 2055 of the Code of Civil Procedure. He worked as a mechanic in the maintenance of Barco Rammers. He testified that when the particular machine was returned after the accident, 'it had a slightly burned ignition wire on it,' the burned portion being 'from the spark plug up to the guard wire, the guard loop.' The entire wire leading up to the magneto was replaced. With respect to the cap used on the gasoline tank of a Barco Rammer, the witness testified that a neoprene 'O' ring is placed on the cap 'to keep the threads from leaking gasoline' and 'to hold the cap tight.' The 'O' ring is replaced when necessary because of its condition. A screw has not been used to close the hole in the top of the cap since 1954; before that time a screw was inserted through the handle of the cap, the purpose being to prevent gasoline from running out when the machine was laid on the ground. It did not actually screw into the small hole in the cap, but a little rubber part on the end was placed against the hole. Part of Mr. Gibbs' testimony was as follows: 'A. * * * The reason it was taken off was because so many of the people won't unscrew them so the machine would run out of gas rapidly and stop. Q. Actually, if you screwed that thing down tight completely the gravity feed wouldn't even work, will it? A. No. Q. * * * Don't you have to loosen it up for the gas to drop down this line? A. That's right.' The cap is part of a fitting which has threads so that it can be screwed into the tank. The thread used is tapered whereas a machine thread is straight. He further said: 'Q. So that actually if the threads went down entirely this tube, then, it would be narrower at the bottom than at the top; the threads would be wider at the top than at the bottom? A. The way that thread is made, yes. Q. So, if you tried to measure the bottom part of the thread, it's not as wide as the top part? A. Not quite, no, sir. Q. Likewise in this part of the collar it is wider at the top and it narrows down at the bottom? A. Yes, slightly.'

W. P. Fornaciari, a partner in the defendant Fornaciari Company, testified that the machine involved in the accident was manufactured sometime between the years 1952 and 1954. As to the operation of...