Young v. Aro Corp.

• Decision Date: 21 December 1973
• Citation: 111 Cal.Rptr. 535,36 Cal.App.3d 240
• Parties: Janetta M. YOUNG, Administratrix of the Estate of Carl C. Young, Deceased; Janetta M. Young, Plaintiffs and Appellants, v. ARO CORPORATION et al., Defendants and Respondents. Civ. 38571.
• Court: California Court of Appeals Court of Appeals

Page 535

111 Cal.Rptr. 535

36 Cal.App.3d 240

Janetta M. YOUNG, Administratrix of the Estate of Carl C. Young, Deceased; Janetta M. Young, Plaintiffs and Appellants, v. ARO CORPORATION et al., Defendants and Respondents.

Civ. 38571.

Court of Appeal, Second District, Division 5, California.

Dec. 21, 1973.

Rehearing Denied Jan. 18, 1974.

Hearing Denied Feb. 14, 1974.

Hirson & Horn, William P. Camusi and Theodore A. Horn, Los Angeles, for plaintiffs and appellants.

Cummins, White & Breidenbach, Joseph H. Cummins and W. F. Rylaarsdam, Los Angeles, for defendants and respondents.

KAUS, Presiding Justice.

Wrongful death. After a judgment in favor of defendant, Aro Corporation, plaintiff Janetta Young as administratrix of the Estate of Carl C. Young, appeals.

FACTS

On September 9, 1964, Carl Young, plaintiff's decedent, was employed by U.S. Filter Company as a welder. On that day he received a serious injury while using a portable grinder manufactured, sold and later repaired and serviced by defendants Aro Corporation ('Aro'). A high speed abrasive wheel attached to the grinder disintegrated. Young died from the effects of the injuries a few weeks later.

The evidence concerning the cause or causes for the failure of the grinder is highly complex and technical. In brief, plaintiff's theory was that the accident happened because the grinder, which should not have been operating at a speed in excess of about 6000 rpm, was in fact turning at a much higher rate. Further, the grinder was not equiped with a guard which, had it been in place or installed, would have prevented the fatal injury.

The grinder had been purchased from one of Aro's distributors in January 1962. In June 1964, a few months before the accident, it had been returned to Aro with the following request: 'Repair and Reduce to 4500 rpm.' No limitations as to method or cost were placed on Aro. The grinder was returned to U.S. Filter a week later. There was much conflicting evidence on whether or not Aro accomplished the repair job. All questions of negligence on the part of Aro, either as manufacturer or as repairer, were submitted to the jury on instructions concerning which no claim of error is raised. Also submitted to the jury was the issue of Young's contributory negligence. There was also a good deal of evidence concerning the negligence of Young's employer, U.S. Filter, which had intervened in the action below in order to recover workmen's compensation benefits paid. It, incidentally, has not appealed.

Disregarding a great deal of conflicting evidence, the following does appear from the record: When the machine was returned after the June 1964 repair job, its governor was so badly worn that it did not hold the speed down to 4500 rpm. ¹ Plaintiff's theory is that Aro's failure to install a new governor caused the grinder to be defective when returned.

It is undisputed that in spite of the worn condition of the governor, its speed could have been reduced by making adjustments on a certain bushing. Plaintiff's expert, however, characterized such an adjustment as an 'artificial crutch.'

On the other hand there was much evidence that the grinder did run at about 4500 rpm when it was returned.

The grinder, as noted, was not equipped with a guard; the employer's failure to so equip it violated a safety order. The tool carried a warning on the name plate stating. 'Check rpm with each wheel change.' The plate was, however, extremely scratched and worn, the writing quite small and psychologically hidden in that it appeared under a heading 'Capacity' followed by two lines of technical description. In any event, no equipment with which plaintiff's husband could have checked the speed was available to him. ²

There was evidence that as the grinder increased its speed due to wear, the effect would be noticeable to the operator through the sound of the grinder, the emission of sparks, and an absence of power surge.

DISCUSSION

Plaintiff's contentions on appeal involve chiefly the issues of her husband's contributory negligence, the admissibility of a certain report, and defendant's strict liability as a repairer. Since the judgment must be reversed because of an error in the instructions on contributory negligence, we reach that issue first.

Plaintiff contends that there was no evidence to justify instructing the jury on Young's contributory negligence. The contention is without merit. The defense introduced evidence, summarized above, that increases in the speed of the tool are noticeable to the operator. Although, arguably, the maintenance practices of Young's employer made speeding grinders the rule rather than the exception, Aro was entitled to have the jury evaluate the evidence on contributory negligence for what it was worth. ³

Plaintiff next contends that the court erred in refusing to soften the impact of instructing on the issue of contributory negligence by giving BAJI 3.40, requested by her. The instruction reads as follows: 'When a person's lawful employment requires that he work in a dangerous location or a place that involves unusual possibilities of injury, Or requires that in the line of his duty he take risks which ordinarily a reasonably prudent person would avoid, the necessities of such a situation, insofar as they limit the caution that he can take for his own safety, lessen the amount of caution required of him by law in the exercise of ordinary care.' (Emphasis added.)

That BAJI 3.40 correctly states the law is not open to doubt. (Austin v. Riverside Portland Cement Co., 44 Cal.2d 225, 239, 282 P.2d 69.) Further, it is well established that the failure to instruct with respect to the principle embodied in the instruction may be reversible error. (Fry v. Sheedy, 143 Cal.App.2d 615, 627--628, 300 P.2d 242.) We think that is the case here. The evidence of contributory negligence on which defendant relied sounds fairly substantial in the abstract. Reasonable men read name plates on tools, listen for unusual sounds, notice the emission of sparks and suspect the significance of an absence of power surge. In practice, however, reasonable men who are paid to give at least part of their attention to their job, particularly those whose employer has habituated them to a particular risk by never acquainting them with the attributes of safe working conditions, may do nothing of the sort. BAJI 3.40 would have placed defendant's claims of contributory negligence in the proper legal perspective. We feel compelled to hold that the failure to give the instruction was prejudicial.

Two remaining issues will inevitably arise at the retrial. It is, therefore, appropriate to discuss them. (Code Civ.Proc., § 43.)

The simpler one concerns the claims admissibility of an accident report prepared by an agent of Aro's insurer which contained evidence favorable to plaintiff's theory concerning the cause of the overspeeding.

Plaintiff relies on section 1224 of the Evidence Code, the successor to former section 1851 of the Code of Civil Procedure. The former section was interpreted in Markley v. Beagle, 66 Cal.2d 951, 957--960, 59 Cal.Rptr. 809, 429 P.2d 129. Both sections permit the admission of hearsay evidence in certain situations where an indemnitor is sued and the evidence would be admissible against his indemnitee. Plaintiff is attempting to reverse the direction of this one-way street to admissibility: he would have section 1224 say, in effect, that whatever would be admissible against the indemnitor, may be successfully offered against the indemnitee. That is not the law.

A more difficult issue which will arise at the retrial relates to the question whether the jury should have been instructed on the doctrine of strict liability...