Williams v. Lambert

• Decision Date: 08 March 1962
• Docket Number: No. 10181,10181
• Citation: 201 Cal.App.2d 115,19 Cal.Rptr. 728
• Parties: Jeff WILLIAMS, Plaintiff and Respondent, v. Don LAMBERT, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 728

19 Cal.Rptr. 728

201 Cal.App.2d 115

Jeff WILLIAMS, Plaintiff and Respondent, v. Don LAMBERT, Defendant and Appellant.

No. 10181.

District Court of Appeal, Third District, California.

March 8, 1962.

Rehearing Denied April 4, 1962.

Hearing Denied May 2, 1962.

McLaughlin & Russell, Sacramento, for appellant.

Nathaniel S. Colley, Sacramento, for respondent.

SPARKS, Justice pro tem.

Defendant appeals from a judgment awarding damages to plaintiff for personal injuries. The case was tried before a jury, and a verdict in which three-fourths of the jurors concurred was returned in favor of plaintiff. His damages were assessed in the sum of $33,366.10. Thereafter the trial court in lieu of granting a new trial ordered a reduction in the judgment to $25,000. Plaintiff consented in writing to the remittitur and the motion for new trial was denied. Prejudicial error alleged to have been committed by the trial court in instructing the jury is the sole ground for the appeal.

Plaintiff was a laborer employed by Jackson-Hopkins Company, general contractors engaged in the installation of a storm drainage system in Yolo County. He was injured in the course of his employment when he was struck by a section of large conduit pipe which had been lowered into the drainage ditch by a crane owned by defendant, Don Lambert. The action originally was brought against Sargent, the foreman, who had given the signals to the crane operator, and Don Lambert as codefendants. Subsequently, an amended complaint was filed naming Don Lambert, the crane owner, as sole defendant.

Responsibility for the accident was charged against defendant on the ground of negligence in the operation of the crane and for his alleged failure to comply with a safety ordinance of the Division of Industrial Safety of this state. The following instruction informing the jury of the safety order and the effect of any violation thereof was given:

'You are instructed that at the time of the accident in question there was in effect a General Safety Order of the Division of Industrial Safety, State of California, which governed the operation of the crane in question. It reads as follows:

"4004. Signaling. Only qualified employees shall give signals. No one should give signals except employees who are specifically designated and authorized to do so by the employer. Crane operators shall not accept signals except from those specifically designated and authorized to give the same.'

'The Safety Order just read to you fixes a minimum standard of care, and any violation of its is negligence.' (Emphasis added.)

Appellant contends that the instruction does not correctly state the law, and that it in effect took from the jury the determination of whether the violation of the safety order, if any they found, was a proximate cause of the accident, and also whether under the circumstances defendant's conduct was excusable or justified.

Legally empowered and authorized public bodies may prescribe by regulation what constitutes proper conduct of a reasonable person under particular situations. Conduct below the minimal standards of care thus established is often described as negligence per se, or negligence as a matter of law. (35 Cal.Jur.2d, sec. 16, p. 502.) However in California it is established that the standards imposed by statute or regulation are not inflexible under all situations, nor does proof of violation thereof conclusively establish negligence. (Alarid v. Vanier, 50 Cal.2d 617, 327 P.2d 897; Gallup v. Sparks-Mundo Engineering Co., 43 Cal.2d 1, 271 P.2d 34; Tossman v. Newman, 37 Cal.2d 522, 233 P.2d 1; Kingery v. Southern California Edison Co., 190 Cal.App.2d 625, 12 Cal.Rptr. 173; Saeter v. Harley Davidson Motor Co., 186 Cal.App.2d 248, 8 Cal.Rptr. 747; Servito v. Lynch & Sons Van & Storage Co., 191 Cal.App.2d 799, 13 Cal.Rptr. 313.) The more reasonable rule as expressed by Chief Justice Gibson speaking for the court in Alarid, supra, 50 Cal.2d at page 621, 327 P.2d at page 898, is: 'The presumption of negligence which arises from the violation of a statute is rebuttable and may be overcome by evidence of justification or excuse.'

Unless only one reasonable inference can be drawn from the evidence, the issue of whether the violation was under the circumstances excusable or justifiable is for the trier of fact. (Figlia v. Wisner, 150 Cal.App.2d 109, 309 P.2d 832; Taylor v. Jackson, 123 Cal.App.2d 199, 266 P.2d 605; Smith v. City & County of San Francisco, 117 Cal.App.2d 749, 256 P.2d 999; McDonald v. Foster Memorial Hospital, 170 Cal.App.2d 85, 338 P.2d 607.) To be of consequence the violation of statute or of regulation must be shown to have proximately caused or contributed to the injury or damage complained of, which also is ordinarily a question of fact to be resolved by the trier thereof. (Mawhiney v. Signal Trucking Co., 132 Cal.App.2d 809, 283 P.2d 27; Lopez v. Capitol Co., 14 Cal.App.2d 60, 296 P.2d 63; Hickenbottom v. Jeppesen, 144 Cal.App.2d 115, 300 P.2d 689; Figlia v. Wisner, supra.) In Alarid, supra, the Supreme Court in reviewing a number of instructions on the subject, including those contained in California Jury Instructions, Civil, No. 149 and No. 149.1, stated (50 Cal.2d p. 624, 327 P.2d at p. 900): 'In our opinion the correct test is whether the person who has violated a statute has sustained the burden of showing that he did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desires to comply with the law.' Language of instructions inconsistent with the rule as announced was specifically disapproved. ¹

We are of the opinion that the instruction given to the jury in the instant case constituted error. The jury should have been instructed that the presumption of negligence which arises from the violation of a statute is rebuttable and may be overcome by evidence of justification or excuse. (Alarid v. Vanier, supra; Kingery v. Southern Cal. Edison Co., supra.) The failure to instruct correctly and fully on this subject must necessarily have excluded from the jury consideration of issues of fact which it alone had the prerogative and duty to determine.

To evaluate the probable effect of the erroneous instruction upon the verdict of the jury, and to determine whether or not it was prejudicial, it is necessary to examine the entire record, including the evidence. (Bridgman v. Safeway Stores, Inc., 53 Cal.2d 443, 2 Cal.Rptr. 146, 348 P.2d 696; Butigan v. Yellow Cab Co., 49 Cal.2d 652, 320 P.2d 500, 65 A.L.R.2d 1; Nahhas v. Pacific Greyhound Lines, 153 Cal.App.2d 91, 313 P.2d 886.) A consideration of the record discloses that plaintiff as an employee of the general contractor, Jackson-Hopkins Company, was working as a pipe layer in a ditch which had been excavated to a depth of from 12 feet to 18 feet. The conduit was constructed in sections measuring 6 feet in diameter and 6 feet in length. Each section of pipe weighed approximately 6 tons. Due to the size and weight of the pipe and the depth of the ditch it was necessary to employ a crane in lifting and in lowering the sections. The superintendent in charge of the project for Jackson-Hopkins Company and plaintiff's supervisor was one Oscar Sargent. Arrangements had been made by Sargent with defendant, Don Lambert, for the rental of the crane. The agreement was that defendant would furnish the crane, together with an operator and an oiler, for a stipulated hourly rental. It was the oiler's function to drive the equipment to the site of the work and to care for the machinery. It was also his job, when required, to relay signals to the operator. The latter was in charge of the crane and caused it to operate by engaging and disengaging the necessary levers. It was conceded that Vern Lambert, the operator of the crane, and Ray Hansen, the oiler, were employees of Don Lambert and were paid by him at all times. The court correctly instructed the jury that the crane operator was acting as agent for the defendant and within the scope of his authority at the time of the events out of which the injury to plaintiff occurred. The crane furnished by defendant was mounted upon the frame of a truck which was parked about 10 feet from the edge of the ditch in which plaintiff was working. Because of the depth of the excavation and of the position of the crane the operator could not see the workmen in the ditch. Movement of the sections of pipe by the crane was therefore accomplished by hand signals given to the operator who put his machine into action accordingly. The signals used in the operation were standard to the trade and understood by the construction workers. Signals were only to be given by and accepted from an authorized and designated person.

On the morning of the accident plaintiff had been detailed to move some supplies in a truck. In his absence another pipe layer by the name of Wakefield had laid three sections of pipe, which installation had been subsequently rejected by the inspector on the job, the alignment not being correct. The three sections were then removed and the process of relaying them begun. Plaintiff had returned and both he and Wakefield were in the ditch performing their duties as pipe layers. Sargent was in charge of the operation and rode down into the ditch on a section of the pipe being relaid. When this pipe had been lowered to the floor of the ditch, the boom of the crane was left attached to it. Plaintiff testified that he turned to secure an iron bar with which to release the 'T' fastener of the boom. Sargent while standing on top of the pipe and with his arm and hand extended upward gave the crane operator a signal to lift the pipe slowly. As the pipe was raised from the ditch floor it rolled toward the bank and its pendulum-like motion pinned plaintiff against the wall of the ditch. Plaintiff testified that he had not signaled for the pipe to be raised, had not observed anyone else giving...