Jones v. Johnston Testers, Inc.

Plaintiffs appeal from a judgment of nonsuit granted in a jury trial of an action for wrongful death.

John L. Lucas, one of the rotary helpers, said he screwed in the particular plug; others say Jones did that; all agree that Jones put the ring of the plug into the hook, and, according to Lucas, “I watched him rattle it back and forth as we always did to see that it was latched.” The two stood there, awaiting their next movement while the pipe was being drained and lowered; the wet plug fell and hit Jones on the head inflicting the fatal injuries.

The plug is made of aluminum, about 4% inches in its greatest diameter and weighs some 7% pounds. In its top is a metal ring with an inside diameter of 2% inches. When in use the plug is attached to a “safety hook” which is on the end of a chain about 6 or 7 feet in length. The chain is fastened at the top of the hoisting apparatus, part of which is known as the elevator. The elevator raises and lowers the pipe. The hook is the part of the equipment which was responsible for the accident. It is generally oval in shape, some 6 inches long and 3 inches wide, and made of bronze. On the front is a moveable “safety latch” which when closed forms a continuous piece of metal with the rest of the hook and will not permit the ring of the plug to escape from the hook; when opened there is a space of about 2 inches in the front of the hook through which the ring of the plug can be inserted or removed. To open this latch (when the hook is operating properly) it is necessary to apply an inward pressure to the latch from the outside and at the same time press a spring trigger in the back of the hook. It is a squeezing movement. When this is done the latch opens and stays open until the trigger is pressed again; when that occurs the latch automatically closes. In a normal operation the plug, when unscrewed by the derrick man from the pipe, hangs on the closed hook which is on the chain.

On the day of the accident a stand of pipe was pulled to the height where the plug was to be installed. Lucas or Jones, the decedent, installed the plug. Jones then placed the hook in the ring on top of the plug. It was his duty

The defendant in this action is a third person who supplied equipment to Jones’ employer. The duty resting upon the hirer is summarized in this language, at page 673 of Prosser on Torts:

“It is now generally agreed that a seller, or other supplier of chattels for a consideration, may be liable for harm to the person or property of a third person who may be expected to be in the vicinity of the chattel’s probable use, if he has failed to exercise reasonable care to make the chattel safe for the use for which it is supplied.”

The Restatement says:

“One who leases a chattel as safe for immediate use is subject to liability to those whom he should expect to use the chattel, or to be in the vicinity of its probable use, for bodily harm caused by its use in a manner for which, and by a person for whose use, it is leased, if the lessor fails to exercise reasonable care to make it safe for such use or to disclose its actual condition to those who may be expected to use it.” (Rest., Torts, 1095, § 408.)

Comment a. upon said section says:

“When lessor must inspect. The fact that a chattel is leased for immediate use makes it unreasonable for the lessor to expect that the lessee will do more than give it the most cursory of inspections. The lessor must, therefore, realize that the safe use of the chattel can be secured only by precautions taken by him before turning it over to the lessee.”

And comment b.:

"The rule stated in this Section is peculiarly applicable to persons who make a business of leasing chattels. In such a ease, in the absence of an understanding to the contrary it may be assumed that both lessor and lessee understand that the article is leased as fit for immediate use.”

Jones was seen to connect the hook and plug in the usual manner, and the absence of his testimony due to his death creates a presumption of the exercise of reasonable care on his part. (Scott v. Burke, 39 Cal.2d 388 , 394 [ 247 P.2d 313 ].) Thus the particular movement of the elevator starts with the ring of the plug properly inserted in the hook and the hook properly closed. The fact that they stayed in place on the upward trip is also some evidence to this effect.

Narron, the derrick man who unscrewed the plug some 85 feet in the air, testified that in unscrewing the plug “You hold the chain up with your left hand and unscrew the plug and set the plug back in the elevators, unlatch your door, take the pipe out of the elevators and rack it behind. . . . The Court : So, when you say you set it back, you put it behind the elevator and let it hang free ? The Witness : Put it behind the elevators. Q. By Mr. Passin [attorney for plaintiffs] : In relation to the monkey board, how far below the monkey board is the plug at the time that it is hanging suspended by the chain? A. It is not below the monkey board. It is above the monkey board about 5 feet. Q. It is above the monkey board at that time? A. At that time, yes. The Court : When you unscrew this plug, is it about your shoulder height? The Witness: Just about shoulder height. . . . Q. While you are racking the pipe, after you open the door of the elevator, where is the plug at that time ? A. It is behind the elevators. Q. Hanging from this chain; is that right ? A. Yes. Q. And except for the chain and the hook, is there anything else that holds the plug up ? A. Just the chain and hook. Q. In this operation, can you explain more in detail how you would take the plug out? How would you remove the plug? A. You have to unscrew it. Q. And you unscrew it with which hand? A. Your right hand. Q. Would you only use the one hand? A. Well, it depends on which link you would have the chain on. If you have it-Q. I ain talking about this- A. This particular time? Q. Yes. A. It was on the left link, and that would make the chain slant down to the plug. Naturally, you use your left hand to hold the chain and unscrew it with your right. Q. So, on this day, when you were performing these, duties,

“Q. By Mb. Passin : Mr. Narron, when you set the plug behind the elevators on these occasions that morning when you were pulling the pipe out, do you remember if at any time the plug swung on the chain? A. Well, yes, the elevators swing. You pull the pipe over before you unlatch them, and the elevator or plug, links and all, swing back. Q. I am talking merely about the plug that is suspended from the chain. Does that swing? A. Yes, they all swing. . . . Q. [By Mb. Welpton, attorney for defendant] : And this whole thing is moving, kind of swinging and swaying up there, isn’t it? A. Yes. Q.-When you are trying to take this plug out and take this pipe and rack the pipe, after you get the plug out; isn’t that right? A. Well, when you take the plug out, it is not swinging; but when you get it out and set it behind your elevators, then pull your pipe over to unlatch the elevators, then when the elevators comes off the whole thing swings, blocks and all. Q. So now you just took this plug on out and then you just pushed it out through the elevators, or out beyond the elevators there? A. Set it behind. Q. And just let it down, didn’t you? A. Yes. . . . Q. By Mb. Passin : There is one thing I am confused about, Mr. Narron, and that is the swinging of the elevator. You mentioned that the elevator swings, is that right, at some point in this operation? A. When you pull your pipe to you, you have a rope on the derrick that you put around the pipe, and you pull it over and unlatch your elevators. Well, when the door comes open, the elevators swing back. Q. You pull over the pipe; that operation you just described. Is that done before or after the plug is unscrewed ? A. That is after the plug is unscrewed. Q. And you say the elevators go back; is that right? A. Yes. Q. They swing back? A. When you unscrew the plug and set it back of the elevators, then you take ahold of your haul-back rope and pull it to you and unlatch it. Q. How far back would the elevators swing, do you know ? A. They would swing two feet, I guess. Q. And when they swung two feet, what would happen to the plug and chain that was suspended from the links ? A. Well, it would swing with them, I guess. Q. They would swing with the elevators. On this occasion immediately preceding this accident, did the elevators swing? A. Yes. . . . The Coubt: Not how far will it swing; how far back did it swing? Q. By

Mr. Eoyce D. Leer, a mechanical and industrial engineer, who was employed as safety engineer for Kellogg’s insurance carrier, testified that he was given possession of the chain, hook, and plug within three days after the accident. He took the hook with him and in his own office examined it as “completely as we could without taking it apart.” He testified that the points of contact between the safety latch and the trigger, where it was intended to hold the hook in a closed position, were quite badly worn, even for bronze; instead of meeting squarely, they were worn around 7, maybe 10, degrees on each side; by “degrees on each side” he meant “an inclined plane of about seven or ten degrees on each of the two members”; the wear was at the point of contact between the latch and the trigger; the points of contact were worn down to an angle between 7 and 10 degrees on each side; the excluded angle would be about 14 or 15 degrees. Exhibit 1, produced by defendant, is a plug, hook and chain similar to the one involved in the accident, but not the same one. The hook involved in the accident was not produced. Using Exhibit 1 for illustration the witness pointed out a worn spot “where the trigger falls back, and pulling the latch way forward, the worn space that denotes the wear on both can be readily observed. ’ ’ He also said there is not as much wear on Exhibit 1 as there was on the hook which was in the accident.

Mr. Leer further testified:

“Q. [By Mr. Passin] : What effect, if any, would this wearing have on the particular hook that you examined?

“A. First, it would remove the squareness of the angle and offset the latching capabilities of the safety latch; and, secondly, the angle of the inclined plane would allow for a decrease in the amount of pressure necessary to snap it open without using the trigger.

“Q. I show you Plaintiffs’ Exhibit 1 and ask you whether or not you can demonstrate that on this hook that we have introduced here in evidence. . . .

‘ ‘ The Witness : There is already some play in here, and by increasing the angle, it offsets the force of the spring. Instead of hitting square, if it is hitting like this, it will allow that to ride up and push it out of the rod.

“Mr. Welpton: For the record, may that be described? He is showing an exertion of pressure on the outside of the latch.

"The Witness : On the outside of the latch only.

‘ ‘ The Court : I understand from your testimony, in your opinion, the wearing of the part indicated would permit pressure on the outside without touching the latch to-

“The Witness: Yes, sir; because an inclined plane—well, it is a wedge; a wedge, depending upon its angle, will always increase the amount of work to be done by a given effort. As your Honor can see, the latch does not entirely encompass the end of the trigger now. The wearing actually has to be over only about one-half of the end of the latch to allow for a pressure opening on the latch.”

Mr. Leer was then asked this question by counsel for plaintiff: “Was the wearing on the hook that you examined to such an extent as to create the hazard of it being opened without exerting pressure on both the latch and the trigger at the same time?” Defendant objected to the question on the grounds it was “incompetent, immaterial, not within the issues of the case, and no proper and sufficient foundation laid.” The objection was sustained. The ruling was error and highly prejudicial. The crucial question in the case was whether the hook was worn to the extent that it would open without pressure being exerted on both the latch and the trigger at the same time. That Mr. Leer was a highly qualified expert is not subject to debate. His qualifications had not been questioned. The effect of the wear he saw and described was strictly a matter for expert testimony.

“It has long been recognized that expert testimony is not only proper but also virtually indispensable in cases where the relation between the facts and results may be understood only by those with special skill or training. ’ ’ (Natural Soda Products Co. v. City of Los Angeles, 109 Cal.App.2d 440 , 443 [ 240 P.2d 993 ].) That is the situation here. (See also Manney v. Housing Authority, 79 Cal.App.2d 453 , 460 [ 180 P.2d 69 ]; Jutras v. Satters, Inc., 96 N.H. 300 [ 75 A.2d 712 , 713]; 20 Am.Jur. 647, § 775; 32 C.J.S. 394, § 569.)

The witness had disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury. The purpose of the