Van Horn v. Pacific Refining & Roofing Co.

This is an appeal from a judgment in favor of the plaintiff in an action for damages for personal injuries, and from an order denying the defendant’s motion for a new trial.

The first contention of the appellant is that its motion for a nonsuit should have been grantedt The following are the conceded facts of the cause as presented by the evidence in support of the plaintiff’s ease: The defendant is a corpora-' tion which for several years past has been engaged in the manufacture of roofing and other building material in the city of San Francisco. In the month of March, 1912, it entered into a contract with the San Francisco Mill Furnishing Co., another corporation, by which the latter agreed to undertake the installing of certain machinery in the premises of the defendant, which machinery required connection with steam-pipes for operation and use. The installation of these steam-pipes, and their connection with the machine, was to be done wholly by the defendant. Some of these steam-pipes were placed in position before the Furnishing Company commenced its work, and others were being installed while the

It is practically conceded by the briefs of opposing counsel that in order to defeat this motion the plaintiff must rely on the doctrine of res ipsa loquitur, and that the question as to whether or not this doctrine can have application to the facts of this case is the main issue upon this appeal.

The plaintiff was not an employee of the defendant and had no relation with it except that arising out of the fact that he was an employee of the independent contracting company engaged in the installation of certain machines in the defendant’s premises. With the work of constructing or installing the steam-pipes upon the premises the employer of the plaintiff had nothing to do. The defendant was bound to furnish to the contracting company and its employees a reasonably safe place in which to do their work. The employees of the defendant who were installing its system of pipes were not the plaintiff’s fellow employees. There ivas nothing in the evidence offered in the course of the plaintiff’s case from which an inference of negligence on his part could fairly arise, nor was there any evidence tending in the remotest degree to show that the employer of the plaintiff, or his fellow employee, or any other person save and except defendant’s employees, had ever touched or tampered with the steam-pipes of the defendant, or this particular pipe, or the cap which covered it and which was blown off at the time of plaintiff’s injuries.

Such being the state of the evidence at the close of the plaintiff’s proofs, we think that a case was presented to which the doctrine of res ipsa loquitur may be fairly and properly applied. The cap of this steam-pipe which blew off at the critical moment when the plaintiff was bending over it in the course of his work had been placed upon it only three days previously by an employee of the defendant. There are only three possible ways by which its dislocation could be explained; either it was defectively constructed; or negligently and insufficiently affixed to the pipe; or else it had been tampered with and loosened to the point of danger under pressure by some one other than the defendant’s employees. In either of the first two of these possibilities the defendant would be liable. But the appellant contends that because the third possibility exists the doctrine of res ipsa loquitur can

We think this argument, unsustained as it is by any semblance of evidence or proof tending to show such interference with this pipe or cap, carries the possibilities in cases of this kind entirely too far. To give it application would be to practically eliminate the doctrine of res ipsa loquitur from the law, since it would be difficult to imagine a case where the appliance causing the accident would be so immured as to make it impossible for any person but its owner or operator to have access to it. The cases which the appellant cites as sustaining this view fall short of doing so; and among these the case of White v. Spreckels, 10 Cal. App. 287 , [ 101 Pac. 920 ], will serve as a good illustration of the distinctions to be drawn in the application or nonapplication of the rule.

In that case a steam-heating radiator in a room occupied by the plaintiff exploded. The evidence showed that while the defendant, the owner of the building, had installed and was maintaining the radiator, it was as to its immediate use under the control of the plaintiff, who was actually engaged in heating or drying towels upon it (a use for which it was not intended) at the moment of its explosion. The rule declared in this and the other cases cited by appellant, to the effect that the exclusive control and management of the appliance causing the injury must be shown to have been in the defendant, must be taken to refer to the right of such control; otherwise, as we have seen, the doctrine of res ipsa loquitur could seldom if ever be given application.

,In the case at bar the exclusive control over the construction, installation, operation, and use of the steam-pipes in this building and of this particular steam-pipe was in the defendant and in no one else. And this condition is not aifected by the fact that it would have been possible for other persons in no way entitled to do so to have touched or

The recent case of O’Connor v. Mennie, 169 Cal. 217 , [ 146 Pac. 674 ], in no way militates against this rule, but on the contrary it expressly restates and upholds it; while at the same time defining the limitations attending its application to cases between employees and employers, which do not exist in the case at bar.

It follows from these views that the defendant’s motion for a nonsuit was properly denied.

It is, however, urged by the respondent that even if it were conceded that the court erred in denying the motion for a nonsuit, the-error, if any, was cured by affirmative evidence offered by the defendant, and from which the jury would have been justified in finding that the defendant was negligent. The defense produced as its own witness, and after the motion for nonsuit had been denied, the steam-fitter in its employ who had placed the cap on the pipe a few days before the accident. He testified: “I screwed it on as tight £},s I could by gripping it with my two hands. I screwed it dow)n tight. I put it on, I think, about eight or nine days befor'e the accident happened. During that time steam was being continually passed through the pipes.” If this evidence hati been before the court and jury at the time the defendant’^ motion for nonsuit was made, it would seem quite clear that,

The appellant urges several alleged errors of the court in respect to its instructions to the jury. None of these merit especial attention except the objection that the court erred in its ruling refusing to give a requested instruction on the subject of the plaintiff’s contributory negligence. The answer to this objection is that there was no evidence of any contributory negligence on the part of the plaintiff sufficient to justify or warrant the giving of such an instruction. Besides, the defendant had not presented the issue of contributory negligence in its answer. (White on Personal Injuries, sec. 441.)

The appellant further contends that its motion for a new trial should have been granted upon the ground of newly discovered evidence. The two items of newly discovered evidence upon which the appellant relied were, first, a written statement of one of the plaintiff’s main witnesses as to the circumstances of the accident, made a day or two after its occurrence, which varied in certain material respects from his testimony given at the trial, and which the defendant claims it could have used for the purpose of impeachment of such witness had this written statement been in its possession at the time his testimony was given. It is a well established rule, however, that newly discovered evidence which is simply impeaching or cumulative in character is insufficient to support a motion for a new trial. (People v. Goldensen, 76 Cal. 328 , [ 19 Pac. 161 ].)

The second item of evidence which the defendant claimed to have been newly discovered by it was the cap of the steam-pipe which was blown off at the time of the plaintiff’s injury.

Judgment and order affirmed.

Lennon, P. J., and Kerrigan, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal was denied by the supreme court on May 24, 1915.