Williams v. Lambert

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

Plaintiff was a laborer employed by Jackson-Hopldns 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 eodefendants. 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 it 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

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., 141 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 (p. 624) : “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

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 Wake-field 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

Plaintiff attempted to fix responsibility for the accident upon the owner of the crane for the manner in which the signal was accepted by the operator and the pipe caused to be moved. The following excerpts taken from the record illustrate sharp conflicts as to the proper method of signaling to the operator, and particularly as to who was authorized to give the signals.

We quote from plaintiff’s testimony: “Q. Will you tell us again what your job was ? You said it was a pipe layer. Tell me how you function in laying these pipes ? A. A pipe layer, you give the signals, you tell them where—you motion for them to set the pipe in a ditch, lay in an eighteen foot deep ditch, fourteen feet wide. I can’t see over it. . . . Q. You said something about signals. To whom did you give signals ? A. I gave the signals to the oiler and he relayed them to the crane operator. Q. You would give signals to the oiler and the oiler gave signals to the operator ? A. Yes. . . . Q. When the pipe came to the ditch what would you do? A. If I was ready to put a pipe in I would signal the oiler. If I wasn’t ready I would signal to stop. Q. Was there any understanding or regulation about when the operator could lower the pipe or move it while you were in the ditch? A. He wasn’t supposed to move at no time unless I signaled. Q. Did you signal the operator directly or was the oiler supposed to relay the signal? A. The oiler was supposed to be at the "ditch. The operator could not see me.”

We quote from the testimony of Oscar Sargent: “Q. In the month of July, 1957 you were in the process of laying this pipeline? A. Yes. Q. You have already told us Mr. Williams was one of Jaekson-Hopkins’ employees? A. Yes. Q. Working under your direction and control? A. Yes. Q. Now, did you on any occasion, sir, give signals to the crane operator?

We quote from defendant’s testimony: “Q. So far as you were concerned and your instructions to your crane operator were concerned the crane operator could take any instructions from anybody on the job who gave them to him? A. Yes. I didn’t instruct him otherwise. Q. You didn’t give him any instruction or designate who would be the signal giver? A. No. That was Jackson-Hopkins’ part of the job. Q. Are you telling us you delegated to Jackson-Hopkins Company the responsibility of determining who would give signals. A. Yes. All they did from me was rent the crane with operator and oiler fully operated and maintained to do their work as they saw fit and they did the work the way they wanted.”

We quote from the testimony of Yern Lambert: “Q. Mr. Lambert, when you were operating from a position where you could not see men down in the hole the practice was that somebody at the scene would relay signals to the oiler and the oiler would relay signals to you; is that right? A. Yes, we take signals from the oiler when we can’t see and if nobody higher up is around to oversee it. Q. And who determines whether a signalman is necessary? A. The operator if he can’t see he has got to have his oiler out where he can see him. Q. On this day you could not see, could you ? A. No. Q. So

From the foregoing it clearly appears that there were serious conflicts in the testimony not only as to the manner in which the signal should be given but also as to how the accident happened and the proximate cause thereof. We are convinced that the evidence was reasonably susceptible of different conclusions on the question of negligence and proximate cause, or even on contributory negligence, if the jury accepted Sargent’s testimony that the accident could have been “helped” if plaintiff “had stayed where he belonged instead of jumping between the pipe and the ditch.” Undoubtedly the jury could have concluded that the proximate cause of the accident was the failure of Sargent to ascertain with certainty that the pipe could be moved in safety before giving the signal to the crane operator. However, it is not our function to determine issues of fact nor to resolve conflicts in the testimony. The sole purpose of our examination of the record is to ascertain whether or not the error in instructing the jury was prejudicial and probably led to the verdict reached. We do not determine where the preponderance lies. (People v. Watson, 46 Cal.2d 818 [ 299 P.2d 243 ]; People v. Salaz, 66 Cal.App. 173 [ 225 P. 777 ]; People v. Abbott, 132 Cal.App. 109 [ 22 P.2d 566 ]; Hirshfeld v. Dana, 193 Cal. 142 [ 223 P. 451 ].)

As the result of our examination of the entire record we have reached the conclusion that the erroneous instruction given to the jury was prejudicial. The jury was instructed that violation of the safety order was negligence. From this instruction the jury could well have concluded that it was required as a matter of law to find the defendant guilty of negligence solely because his crane operator had accepted a signal from the superintendent, Sargent, instead

Respondent urges that irrespective of the effect of the instruction there was independent evidence of negligence on the part of defendant sufficient to support the verdict. In addition to the circumstance of the operator accepting the signal from Sargent when the oiler had left his post, it is contended that the operator responded too quickly to the “hoist slow” signal, and that it was negligence for him to have taken the signal when he could not see the full figure of the man giving it—only his hand. However, examination of the record does not disclose that the operator could not see the signal given, nor that he interpreted it erroneously by giving the “boom up” or “fast movement” rather than the “hoist slow.”

Whenever the evidence is sharply conflicting, it is impossible to say that the jury disregarded an erroneous instruction. We quote from a recent decision of the Supreme Court: “. . . Where it seems probable that the jury’s verdict may have been based on the erroneous instruction prejudice appears and this court ‘should not speculate upon the basis of the verdict.’ (Oettinger v. Stewart, 24 Cal.2d 133 , 140 [ 148 P.2d 19 , 156 A.L.R. 1221 ]; also Miller v. Peters, 37 Cal.2d 89 , 95 [ 230 P.2d 803 ].) The fact that only the bare number of jurors required to reach a verdict agreed upon the verdict for defendants lends further support to the probability that the erroneous instruction was the factor which tipped the scales in defendants’ favor.” (Robinson v. Cable, 55 Cal.2d 425 , 428 [ 11 Cal.Rptr. 377 , 359 P.2d 929 ].)

The judgment is reversed.

Peek, P. J., and Schottky, J., concurred.

A petition for a rehearing was denied April 4, 1962, and respondent’s petition for a hearing by the Supreme Court was denied May 2, 1962. Peters, J., was of the opinion that the petition should be granted.