Morgan v. J. W. Robinson Co.

This is an action to recover damages for personal injuries. The J. W. Robinson Company was conducting a department store in a building situate on Broadway Street in the city of Los Angeles. During the year 1906 it commenced the construction of a second building to adjoin the rear of the one already occupied by it, with the purpose of connecting the two. The work was done under a contract with one Low, who agreed, for a commission on the cost of labor and materials, to supervise the construction and attend to the buying of materials and the hiring of labor necessary in the construction of said new building by the Robinson Company. Morgan, the plaintiff herein, was employed by Low as a carpenter, and was engaged in work under Low’s direction for a number of months. At the rear of the old building there was a freight elevator inclosed in a brick shaft. In the course of the construction of the new building it became necessary to enter said shaft for the purpose of doing certain carpenter work in connection with the bridging between the floors of the two buildings. Morgan and another carpenter named Patchen were directed by the foreman to drive a hole into the elevator shaft and do this work. They had been engaged in work inside the shaft for two or three days when Morgan received the injury upon which this action is based. Connected with the elevator were heavy metal counter weights which moved up or down in the direction opposite to that taken by the elevator. Morgan and Patchen were at work preparing wooden forms

The theory of the plaintiff was that when he and Patchen commenced to work in the shaft, they had made an agreement or come to an understanding with Pfaeffle, the elevator operator, to the effect that Pfaeffle should give warning by shouting to them before starting his elevator, and that he had followed this course during the two or three days preceding the accident. On the occasion of plaintiff’s injury, however, no such warning had been given, and, in consequence, Morgan had failed to put himself in a position of safety and had been struck by the descending weights. The defendant, on the other hand, contended that explicit instructions had been given to the elevator operator to the effect that the elevator was not to be operated while the carpenters were at work in the shaft, and that Morgan and Patchen had directed Pfaeffle to run his elevator in disregard of these instructions, which had been brought to their notice, stating that there was no danger and that they would not interfere with the elevator.

The motion for new trial was based on various grounds,, including.the insufficiency of the evidence. The order granting the new trial was general in its terms. It stated merely that defendant’s motion for new trial “is ordered to be and the same is hereby granted.”

There can be no question, under the settled rule of this court, that where an order granting a new trial is thus general in its terms, it will be affirmed if it could properly have been granted on any of the grounds assigned. (White v. Merrill, 82 Cal. 14 , [ 22 Pac. 1129 ]; Kauffman v. Maier, 94 Cal. 269 , [ 29 Pac. 481 ]; Newman v. Overland Pac. Ry. Co., 132 Cal. 73 , [ 64 Pac. 110 ]; Ben Lomond Wine Co. v. Sladky, 141 Cal. 619 ,

In the case at bar the transcript contains what purports to be a copy of the opinion of the court in granting the motion, ■and this opinion places the order solely upon a supposed error ■of the trial court in instructing the jury. It expressly declares the concurrence of the learned judge in the findings of the jury on disputed issues of fact. This opinion is not included in the bill of exceptions and is no part of the record, ■but even though it had been duly authenticated, it could not, under the authorities already cited, be considered for any purpose on this appeal. There is, therefore, no merit in the •appellant’s contention that we are here to treat that opinion •as declaring the views of the trial judge on the question of the .■sufficiency of the evidence. We must look solely to the bill of -exceptions and to the order granting a new trial, and if that ■order might properly have been granted upon the ground that the evidence on any material issue was not sufficient to sustain the verdict, the order must be affirmed.

On the question whether or not Morgan was informed when he went to work that the elevator operator had been directed not to run the elevator during the time the work was in progress, and had in the face of that information directed the operator to go ahead and run the elevator nevertheless, there is a clear conflict of evidence. The operator himself testified that the facts were as contended by defendant, whereas Morgan and Patchen testified to the contrary. While an appellate

Inasmuch, however, as the case must be tried anew, it will be well to consider whether the court was in fact in error in giving the instruction which was treated by it in its opinion as furnishing a ground for granting the motion. That instruction reads as follows:—

“The plaintiff when he was injured was engaged in a dangerous undertaking, and he knew it was dangerous when he undertook it. The elevator man knew that the plaintiff was at dangerous work in the elevator shaft. Now, if nothing else was said and no other' instructions were given by their superiors and the plaintiff and the elevator man agreed that before the elevator was moved the elevator man would call out to the plaintiff and his associate and that he would not move it until they answered ‘All right,’ and he did move it without ■calling out, and the plaintiff was injured by reason of such failure, then the plaintiff is entitled to recover.”

If we could look to the opinion of the learned judge below, it would appear that he came to the conclusion that, under the facts supposed, the plaintiff assumed the risk of just such an occurrence as the one that caused his injury. It is now urged by respondent that the order appealed from should be affirmed for this reason. We think, however, that such a holding would involve an unwarrantable extension of the

It is urged, however, that, if the liability of defendant is to be rested on the negligence of Pfaeffle, the plaintiff is precluded from recovery by the fact that he and Pfaeffle were fellow-servants. Such was the holding in Mann v. O’Sullivan, 126 Cal. 61 , [ 77 Am. St. Rep. 149 , 58 Pac. 375 ], a case somewhat similar to the one at bar. But since the decision in the case just cited, section 1970 of the Civil Code has been amended. (Stats. 1907, p. 119.) The accident to Morgan occurred after the amending statute had taken effect. As the law now reads, the exemption of an employer from liability for injuries sustained by a servant through the negligence of a fellow-servant is limited by the proviso that liability shall exist when the injury results “from the wrongful act, neglect or default of a co-employee engaged in another department of labor from that of the employee injured.” We need not here undertake to define with precision the term “department of labor.” Whatever may be the exact meaning of the phrase, it can require no argument to show that a carpenter occupied in the construction of a building and a man operating a freight elevator used in a retail store are engaged in different “departments of labor.”

Prom these views it follows that the mere fact that Morgan went to work in the elevator shaft, knowing that there was an element of danger in so working, did not necessitate the conclusion that he thereby assumed the risk of any injury that might be sustained by him.

While the standard of care required under given circumstances is ordinarily a question of fact, and one for the determination of the jury, we should not, if this were the only question in the case, be inclined to hold that the court erred in declaring in the instruction quoted, that on the facts supposed, plaintiff was entitled to recover. Where the facts are such that the only reasonable inference is that of want of care, the court may properly charge that negligence is shown as matter of law. We think that the record before us leaves no room for doubt that Pfaeffle showed a lack of due care if, after having

■ There are other grounds on which, as respondent claims, the order might be supported. It will hardly be necessary to refer to these in detail. The alleged errors in admitting evidence, if they were errors, were too trivial to be regarded as prejudicial. The instruction that plaintiff and the operator were fellow-servants was properly refused, for reasons above stated. The question of assumption of risk—concerning which an instruction requested by defendant was refused—was sufficiently covered by instructions given. The requested instruction defining contributory negligence might well have been given, although the failure to give it was perhaps, under the peculiar facts of the case, not harmful to defendant.

The order is affirmed.

Angellotti, J., and Shaw, J., concurred.