Vierra v. Fifth Ave. Rental Service

• Decision Date: 06 August 1963
• Court: California Supreme Court
• Parties: , 383 P.2d 777 John VIERRA, Plaintiff and Appellant, v. FIFTH AVENUE RENTAL SERVICE et al., Defendants and Respondents. S. F. 21286

Page 193

32 Cal.Rptr. 193

60 Cal.2d 266, 383 P.2d 777

John VIERRA, Plaintiff and Appellant, v. FIFTH AVENUE RENTAL SERVICE et al., Defendants and Respondents.

S. F. 21286.

Supreme Court of California

Aug. 6, 1963.

Boccardo, Blum, Lull, Niland & Teerlink and Edward J. Niland, San Jose, for plaintiff and appellant.

Walcom & Harmon, Leo J. Walcom, San Francisco, Ropers, Majeski & Phelps, Redwood City, and Cyril Viadro, San Francisco, for defendants and respondents.

PETERS, Justice.

The basic question involved in this case is whether the trial court was justified, under the facts, in instructing on the doctrine of assumption of risk. We have concluded that it was error, serious and prejudicial Plaintiff Vierra operates a bar and respaurant in a building leased from defendant Berkley. Berkley operated the tools that caused the injury to plaintiff. Defendant Fifth Avenue Rental Service was the renter of the tools involved in the accident.

[383 P.2d 778] and therefore reversible, to have instructed on this doctrine.

At the time the lease for the bar and restaurant was entered into, Berkley, the landlord, who is also a contractor, promised to cut a door through one of the inside walls of the leased premises. Several months later Berkley undertook to perform this promise. He did the work during the day while the bar and restaurant were open for business, and while Vierra and a waitress were on the premises. He did not possess all of the proper tools to perform the work. He requested Vierra to go to the Fifth Avenue Rental Service to rent a sledge hammer, a chisel, and a gad. A gad is an instrument made of steel that is, in effect, a cement drill, used to drill holes in concrete when driven by a sledge hammer. Plaintiff rented these three tools from Fifth Avenue, and delivered them to Berkley. The latter then undertook to cut the door through the wall in question.

Berkley first cut out the plaster and wooden supports in the area of the proposed door. This exposed a tapered concrete footing, about 14 to 18 inches in height, along the bottom of the proposed doorway that had to be removed. This footing was solid concrete lined with steel bars. Berkley attempted to remove the concrete footing in three separate and distinct steps. First, he scored the concrete, by chipping it with an ordinary hammer and the rented chisel, in vertical lines to weaken the concrete shell so that it would break in the right places. Then he located and cut the steel bars in the concrete with a hacksaw. Then he started to drill holes in the concrete with the gad and the sledge hammer to weaken the portion to be removed.

During the scoring process, bits of concrete were flying about, the uncontradicted evidence being to the effect that such concrete did not fly around for more than six or seven feet from where Berkley was working. During this process, Berkley warned the plaintiff and his waitress to stand back from the working area. Admittedly the plaintiff and the waitress heeded this warning. The evidence is uncontradicted that neither approached the area where Berkley was working during the scoring process, which took several hours. During the second stage of the operation the sawing of the steel bars there were, of course, no bits of concrete flying about. This is equally true about the third phase of the operation, when Berkley began to use the gad and the sledge hammer. The gad, in effect, drills holes in the cement, thus weakening the structure. When the gad is held on the concrete and hit with the sledge hammer it reduces the cement at the point of impact to powder. It is true that plaintiff in his deposition, plaintiff being a foreigner who has difficulty in expressing himself, stated, in answer to the question 'Did you see pieces of concrete and so forth flying about,' 'yes,' and that such answer apparently referred to the time when he was injured. A reading of the whole transcript demonstrates to a certainty that plaintiff must have been confused when he gave this answer. All of the other evidence, including all of the evidence produced by the defendants, demonstrates that this answer must have referred to the stage of construction when Berkley was scoring the concrete. Berkley, the contractor and expert, was positive that while he was using the gad no cement particles were flying about, that he apprehended no danger at all to anyone from this operation and that he did not warn plaintiff of any danger while he was using the gad. In fact, he testified that at the time of the accident the gad was inserted two or three inches into the concrete, that it could stay there without help, and that he was hitting the top of the gad with the sledge hammer held in both hands.

After Berkley had been using the gad and sledge hammer for about two hours, plaintiff approached the general area where There is a conflict in the evidence as to how far apart Berkley and Vierra were when the plaintiff was hit. In his deposition, plaintiff testified that he estimated the distance between him and Berkley at about nine feet. Berkley testified that he believed plaintiff 'was between 10 and 15 feet' away at the time of the accident. Both were agreed as to the place in the room where each was located when the accident occurred. At the trial, plaintiff testified that, just before he was called as a witness, he had gone to the restaurant and for the first time actually measured the distance between the two spots where the two participants were admittedly located, and 'I know it is 14 feet exactly.' This apparent conflict between estimates, and uncontradicted evidence of a precise measurement, need not here be resolved. On this appeal it may be assumed that plaintiff is bound by his estimate that he was but nine feet from Berkley when he was hit by the particle of steel.

[383 P.2d 779] Berkley was working to pick up some empty bottles. When some distance from Berkley, plaintiff was struck in the eye by a flying particle of metal, which had apparently broken off from the top of the gad. As a result of this accident plaintiff had to have his eye removed, and he now has a false eye.

Before the accident, Berkley had not examined the gad, and while using it he did not pay particular attention to it. On the day following the accident he made a detailed examination, and discovered that there was a chip out of the center of, and other indentations in, the head of the gad. The chip was out of the center of the head, and the piece of steel removed from plaintiff's eye conformed generally in size and shape to the missing piece from the head of the gad. No pieces of steel were missing from the sledge hammer. There is evidence from which it can be inferred that, had the gad been properly machined, tempered, and inspected by defendant Fifth Avenue, such chipping and flattening of the gad would not have occurred. This evidence would have supported a finding that Fifth Avenue was guilty of negligence.

Several days after the accident the rented tools were returned to the defendant Fifth Avenue. Subsequently, after Berkley learned that plainiff had been hit by a piece of steel and had observed the particle at the hospital, he visited Fifth Avenue on two occasions in an attempt to obtain the gad in question. On his first visit, he told one of the clerks that he wanted to buy the gad that had been rented. At that time he saw three gads in the appropriate bin where they were stored, and abserved that one of them, of the size and shape of the one he had rented, had a piece missing from its head. He did not secure the gad that day. He returned the next day. The clerk then informed him that he could not release the gad because the manager of the company had told him not to release it until the manager secured the approval of the company's attorney. The manager came out during this conversation and told Berkley his attorney had given him permission to release the gad. The manager then handed Berkley a gad that was lying on the counter, and Berkley purchased it. When he examined it he observed that the head had been machined and ground down smooth. The hole he had observed the day before was no longer present. He could not tell, of course, whether this was or was not the gad involved in the accident. There was considerable testimony to the effect that when the heads of gads are mushroomed, flattened or chipped by use, they are machined or ground, and tempered.

Plaintiff brought this action against Fifth Avenue and against Berkley. The theory of the complaint so far as Fifth Avenue is concerned, was that the gad was defective; so far as Berkley is concerned, that it was used improperly; or both. The jury brought in verdicts in favor of the defendants. Plaintiff moved for a new trial. The trial court denied the motion as to Fifth Avenue, but granted it as to Berkley, on the ground of insufficiency of the evidence. This order As indicated, the basic question presented on this appeal is whether the trial court properly gave several instructions proposed by defendants on the doctrine of assumption of risk. No question is raised as to the form of those instructions. In our opinion those instructions should not have been given, and the giving of them constituted prejudicial error.

[383 P.2d 780] was not made until after the trial court's jurisdiction, as a matter of law, had expired. As a result, the motion for a new trial was denied as to Fifth Avenue by the court, and as to Berkley by operation of law.

The doctrine of assumption of risk is, of course, an affirmative and limited defense. It applies only when the accident arises from a danger known to the victim before the accident, and where the evidence shows that the victim voluntarily chose to enter or to remain in the zone of known danger. Actual, and not merely constructive, knowledge of the danger is required. The doctrine is to be distinguished from contributory negligence (see note 82 A.L.R.2d 1218), although the...