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District Court of Appeal, Second District, Division 1, California.

PERUMEAN et al. v. WILLS et al.*

Civ. 10123.

Decided: May 08, 1936

Gerald Willis Myers and L. V. Meloy, both of Los Angeles, for appellants. Everett W. Mattoon, Co. Counsel, and Ernest Purdum, Deputy Co. Counsel, both of Los Angeles, for respondents.

Plaintiffs have appealed from judgments entered upon verdicts rendered by a jury in favor of Los Angeles City High School District and Samuel Leonard Fick, an instructor in George Washington High School, in an action wherein plaintiffs, Barouk Perumean, a minor, and his father, Edward Perumean, sought damages for injuries suffered by the minor while attending a class in automobile mechanics. They have also appealed from an order of the trial court denying a motion for new trial as to the above–named respondents.

“The injury happened,” according to respondents' brief, “as the direct result of the act of a fellow pupil, George M. Wills. George Wills had been working in the auto shop under the instruction of the defendant, Samuel Fick, for approximately two years before this accident. He had been a good student in the shop, he had his own driver's license and drove his own car. Mr. Fick had taught auto shop for some nine years without any accidents, and had worked as a mechanic and operated his own garage an additional twelve years. On the particular occasion George Wills had been directed by Mr. Fick to adjust the value tappets on the Buick automobile which had been brought in that morning for repairs. The automobile was first placed near the door at the end of the shop and was examined there by Mr. Fick. George Wills started the motor with Mr. Fick's permission and listened to the tappets to see how much work would be required to adjust them. In order to use the space where the car was standing for another purpose Mr. Fick directed George Wills to put the car on a jack and move it over near the work benches. After the car was moved to that position the motor was again started by George Wills and he ran it for about five minutes to warm up the engine, then turned off the motor and went into the adjacent tool room for certain wrenches. On his return to the automobile he turned on the switch and, standing on the floor of the garage, opened the door and leaned into the front compartment and pressed his hand upon the starter button. In some manner the gearshift lever had been shoved into reverse position so that the gears of the car were engaged and when the engine started the car moved rapidly backward against the plaintiff Perumean and pinned him against the work bench at which he had been working. Realizing what had happened, George Wills sprang into the driver's seat and drew the car forward, releasing the plaintiff. In the meantime, Mr. Fick, who had been engaged in giving instructions to another pupil in a different part of the shop room, had heard the commotion and ran to the assistance of the plaintiff.”

The Buick car upon which work was being done belonged to Samuel Brown, father of a student, who brought it to the auto shop of the school for repairs. As owner of the car, he was made a defendant in this action, but a nonsuit was granted as to him by the trial court, the same action being taken as to Mr. and Mrs. George N. Wills, parents of George M. Wills, also original defendants. After remaining defendants had put on their testimony and the evidence was closed, the court, upon motion, directed the jury to return verdicts in favor of the High School District and the instructor, Mr. Fick, which directions were followed; the jury at the same time rendering its verdict in favor of the minor, George M. Wills.

Later, the trial court denied a motion for a new trial as to the school district and the instructor, but granted such a motion as to the minor and his parents.

The appellants contend that the court erred in ordering the directed verdicts, also in admitting testimony as to the practice prevailing in various other schools and in industry in regard to placing blocks under cars before starting a motor. Error is also predicated upon the court's order denying motion for a new trial as to the School District and the instructor.

In considering the objection to the directed verdicts, we turn to the In re Estate of Baldwin, 162 Cal. 471, at page 473, 123 P. 267, and find the rule set out as follows:

“A directed verdict is proper, unless there be substantial evidence tending to prove in favor of plaintiff all the controverted facts necessary to establish his case. In other words, a directed verdict is proper whenever, upon the whole evidence, the judge would be compelled to set a contrary verdict aside as unsupported by the evidence. To warrant a court in directing a verdict, it is not necessary that there should be an absence of conflict in the evidence, but, to deprive the court of the right to exercise this power, if there be a conflict, it must be a substantial one.” (Citing cases.) As stated many years ago in Marion County Com'rs v. Clark, 94 U.S. 278, 284, 24 L.Ed. 59, 61, 62, “Before the evidence is left to the jury, there is or may be in every case a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed.” That the trial judge was cognizant of these principles appears from his comment at the time he directed the verdicts: “I am convinced that there was no negligence on the part of Mr. Fick, therefore not on the part of the School District.” If there were any evidence of negligence on the part of Mr. Fick, which the jury might have concluded was the proximate cause of the student's injury, then error was committed by the trial court.

Shortly before the accident, the minor plaintiff had been instructed by Mr. Fick to repair a radiator, and to perform that work was directed to go to a soldering bench running from east to west along the north wall of the shop room where the class was conducted. A safety line was marked on the floor parallel with this bench and 5 feet away from it. The Buick was backed up to this line, but there was no barrier between it and the boy, as he stood at the bench. Mr. Fick testified that the boys had been instructed, before starting any automobile, to examine it to see whether it was in gear, that motors must be checked by the instructor when first started, and that the car should be blocked. Blocks 6 inches by 6 inches and approximately 10 inches long were provided for the purpose. One of the students attending the class with the minor plaintiff and minor defendant testified that in addition to the precautions mentioned above, the boys had been instructed to see if the hand brake was set. The minor Wills testified that he had received all these instructions, but “I do not know on this occasion whether or not the hand brake was set on the automobile as I did not test it and I did not block the wheels nor do I know whether or not the wheels were blocked.” Under cross–examinations, Mr. Fick testified as follows concerning blocks:

“Q. And you never made any inspection of that car to see whether it was blocked, or whether any safety precautions were taken, did you? A. I saw the car sitting there, and I gave him permission to start it; I saw him start it, it was all right, I went over across the shop to instruct these other students; came back again, the car had been started, and that is what happened.

“Q. The blocks were not on the car, were they? A. The blocks were not on the car at the time?

“Q. Yes. A. I couldn't say whether they were or not. I don't believe they were.

“Q. You didn't make an examination of the car at all to see whether the blocks were there at all at the time it was first started, did you? A. I was there, I don't remember whether I checked that or not, I don't believe they were on either.”

To offset the theory that negligence arose from failure of the instructor to observe whether or not the wheels of the Buick were blocked when the motor was first started, counsel for the defendant school district produced several witnesses, who, over the objection of plaintiff's counsel, testified respectively that blocking of wheels when starting motors in the auto shops of various schools in Los Angeles, Glendale, Long Beach, Minneapolis, and New York, and also in various garages was not required as a measure of safety and customarily was not done. On this showing, respondents argue that, “No jury can be permitted to say that the usual and ordinary way commonly adopted by those in the same business is a negligent way for which liability shall be imposed,” quoting from Brands v. St. Louis Car Co., 213 Mo. 698, 112 S.W. 511, 514, 18 L.R.A.(N.S.) 701. In our view, an inexperienced boy of fifteen or sixteen years of age working around a school machine–shop, and acquiring for the first time practical knowledge, not only of the trade in which he may be interested, but also of possible hazards incident thereto, is not “in the same business” as experienced auto mechanics working at their trade in industry and private garages. While the custom obtaining under the same or like conditions as in a given case may be shown as bearing on the question of negligence (19 Cal.Jur. 581; Davis v. First Nat. Bank of Fresno, 118 Cal. 600, 50 P. 666), we are by no means satisfied that the practice followed in automobile machine–shops may be accepted as the standard of operations adaptable to students. Youth is notoriously indiscreet, careless, and indifferent in the face of dangers, as to which adults are held to a high degree of care. Therefore, those in charge of boys and girls at school and elsewhere are called upon to adopt such means and measures as may be available for their protection. Failure to follow such a course constitutes negligence.

Nor does it appear that the conditions in the school shops where blocks were not used were the same as in the instant case. We hold, therefore, that the evidence of custom and usage elsewhere was improperly admitted. “The term ‘ordinary care’ is a relative one, and the standard by which it is to be measured varies * * * with the circumstances attending each particular case. * * * Care must be in proportion to the danger to be avoided and the consequences that may reasonably be anticipated as the result of conduct * * *.” 19 Cal.Jur. 579. Applying this language to the situation presented by the facts in this case, we think it may be said fairly that when Mr. Fick instructed his students to block the wheels, he undoubtedly considered it a precautionary measure. Whether, regardless of custom elsewhere, it was a necessary precautionary measure, in view of the position of this Buick automobile in relation to the unguarded position of this boy working at the soldering bench, is a question which we believe the jury should have had an opportunity to determine. Shea v. Pacific Power Co., 145 Cal. 680, 79 P. 373. Upon the jury's decision of that question would then rest its further decision as to whether negligence arose when Mr. Fick failed to ascertain whether or not the wheels were blocked, when he saw George Wills start the motor. In closing, we may say that there was evidence before the jury from which it might have found that no blocks were used on the Buick car on the morning in question.

The appeal from order denying motions for new trial as to respondents Los Angeles High School District and Samuel Leonard Fick being unauthorized (Gray v. Cotton, 174 Cal. 256, 162 P. 1019; Williams Co. v. Leong Sue Ah Quin, 44 Cal. App. 296, 186 P. 401; United Casting Co. v. Duncan, 44 Cal.App. 384, 186 P. 403), is ordered dismissed; judgments in favor of said respondents are ordered reversed; cause remanded for a new trial.

DESMOND, Justice pro tem.

We concur: YORK, Acting P. J.; DORAN, J.

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