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


Civ. 9592.

Decided: April 30, 1936

Thomas J. Straub, W. H. Spaulding, Clinton F. Stanley, and W. R. Dunn, all of San Francisco, for appellant. Joseph A. Brown, of San Francisco, for respondent.

Plaintiff was awarded a verdict for damages against the defendants Pacific Gas & Electric Company, Meyer Rosenberg, and L. Rosenberg on account of personal injuries received by him through their alleged negligence; and the Pacific Gas & Electric Company has appealed from the judgment entered on said verdict.

There were other parties defendant to the action, and mainly on account of the question of liability involved, the trial consumed several weeks. Necessarily the evidence on certain points is conflicting, and, resolving those conflicts in support of the jury's verdict, the essential facts of the case may be summarized as follows: A block of land lying between Indiana, Twenty–Sixth, Minnesota, and Army streets in San Francisco was being gradually filled in and brought to grade. The block was divided into separate parcels, which, although separately owned, were unfenced, and people were constantly traveling over them. On some of the parcels public dumps were maintained, while the others were being filled in under private contracts entered into between the respective owners and the defendant Meyer Rosenberg. One of these owners was Adelheid Schultze, and under the terms of her contract the defendant Rosenberg was required to fill in and raise her land to official grade with good solid soil or rock. No soft or mushy fill was to be used, and signs were displayed on her lot forbidding dumping. For some time preceding and up to the time of the accident herein, appellant had been dumping on the lands within said block many truckloads of refuse and by–products from its gas plant. It consisted of a black, highly inflammable and combustible substance, which when dumped was hot and smouldering, but as it cooled a crust formed on the surface, over which more or less dirt was deposited. Testimony was introduced showing that without permission on the part of the owner or occupant of the Schultze property, and surreptitiously, so the Rosenbergs claimed, appellant dumped much of this inflammable material on the Schultze property. As stated, it was the common practice of people in that neighborhood to cross over the unfenced Schultze property, and on the day of the accident, which occurred shortly after the noon hour, while respondent was walking across the Schultze property, the ground beneath him caved in and he went down to his waist in a pit of smouldering fire, which was consuming the inflammable material dumped there by appellant. Respondent's brother, who at the time of the accident was a short distance away, heard respondent's screams; and he hastened to respondent's aid and pulled him out of the burning hole, but he had already sustained very severe burns which medical testimony shows resulted in permanent injuries.

The first of the five major grounds urged by appellant for reversal is that respondent was guilty of contributory negligence. In support of such contention, it is argued that respondent actually knew of the smouldering character of the material that was being dumped in the block by appellant, and that he had only to anticipate that it might cave and precipitate him into a fire, and that accordingly he should have guarded himself against that contingency. In this regard it may be conceded that a number of circumstances are pointed out by appellant which tend to support its argument. However, on the other hand, respondent testified that there was nothing to indicate that there was a fire concealed below the ground where the accident occurred or that he was entering upon or crossing ground that was dangerous. And in this connection he introduced evidence to show that prior to the accident his physical condition was normal and good in all respects, except a small impairment of his hearing, and that his vision was not defective in the slightest degree. Therefore, in view of the positive testimony given by him that the dangerous condition of the ground was not apparent, it cannot be held as a matter of law that there was no substantial evidence to support the implied finding of the jury that respondent was not guilty of contributory negligence. As repeatedly held, ordinarily the question of contributory negligence is for the jury, Wise v. Stott, 114 Cal.App. 702, 300 P. 883; Wynne v. Wright, 105 Cal.App. 17, 286 P. 1057, and, where the evidence is conflicting, the verdict and judgment cannot be disturbed, Bannister v. Los Angeles Ry. Corporation, 203 Cal. 427, 264 P. 756; Cummins v. Yellow & Checker Cab Co., 127 Cal.App. 170, 15 P.(2d) 536; Nevin v. Mallon, 136 Cal. App. 571, 29 P.(2d) 303. Moreover, it is well established that, if reasonable minds would disagree under all the facts and circumstances as to whether a person was negligent, the judgment of the trial court must be affirmed. Gerdes v. Pacific Gas & Electric Co., 219 Cal. 459, 469, 27 P.(2d) 365, 90 A.L.R. 1071. We are of the opinion that the facts and circumstances of the instant case are such that at best reasonable minds would disagree on the issue of contributory negligence. Therefore, under the rule above stated, the conclusions of the jury and the trial court on this issue cannot be disturbed on this appeal.

The second ground urged for reversal is based upon the legal proposition that one who dumps and abandons refuse to become part of the realty at a public dump no longer has control of it and is not responsible for injuries to one who goes voluntarily upon such public dump. Numerous authorities are cited and discussed by appellant in support of this contention. The principle of law thus sought to be invoked, however, is not applicable here, for the reason that the evidence clearly shows that the Schultze property was not a public dump, but, on the contrary, was being filled under private contract, which by its terms excluded public dumping; and that signs forbidding dumping were displayed on the property. It follows, therefore, that by dumping its refuse thereon without legal authority from the owner or occupant appellant became a trespasser upon the Schultze property, and as such became and was liable for its negligence. Nor does the admitted fact that respondent also was a trespasser or at most a licensee on the Schultze property exempt appellant from liability for its negligence, for the reason that, both being trespassers or mere licensees, each was liable to the other for damages arising from his or its negligence. Roberts v. Pacific Gas & Electric Co., 102 Cal.App. 422, 283 P. 353.

As third ground for reversal, appellant contends that respondent failed to prove facts showing that appellant owed him any duty to exercise care for his safety, in that respondent failed to prove that the accident happened on property on which appellant did not have the right by invitation to dump its refuse. This contention involves two points, the first of which is whether respondent established that appellant had no legal right to dump its refuse on the Schultze property, because, if it did have such right, then its liability was governed by the well–settled rule that one who is rightfully on real property under authority of the owner is rightfully in possession thereof, and to that extent is clothed with the same rights as an owner, and therefore is not obligated to conduct himself or the operations of his property so as to make it safe for a trespasser; that under such circumstances he will be liable only for willful or wanton acts done with knowledge of the presence and apparent danger of the trespasser. As already pointed out, however, the evidence establishes that appellant did not have any lawful right to dump its refuse on the Schultze property, nor upon any portion thereof, but, on the contrary, that it was a trespasser thereon. Therefore, under the trespasser rule above stated, it was liable to respondent for its negligence. The second point is whether the accident happened within the boundaries of the Schultze property, or, as appellant contends, just outside of the boundaries thereof. Upon this question of fact much testimony was introduced and extended arguments were presented in the briefs, for the reason that, if it happened beyond the boundaries of the Schultze property, appellant was liable only for a willful and wanton injury, and no such injury is claimed or proved. The jury found in effect by its verdict, however, that it happened within the boundaries of the Schultze property; and, by denying appellant's motion for new trial, the trial court evidently reached the same conclusion; and in our opinion such finding and conclusion are supported by substantial evidence.

Fourth, appellant contends that the trial court erred in its instructions to the jury, in that it incorrectly stated the law as to dumps, denied appellant the right to have certain material issues submitted to and passed upon by the jury, and gave formula instructions omitting essential elements of liability. We have inquired into each of the numerous assignments made in this behalf, but find no substantial merit in any of them. With respect to the instructions proposed by appellant and by the court refused, it may be stated that several were either based upon theories not supported by the evidence or did not correctly declare the law upon the subjects to which they related, and, as to the rest of them, that the substance thereof was covered by other instructions which the court gave. With respect to the trial court's charge to the jury, it may be said that it contained a large number of instructions, many of which were proposed by appellant, all of which were divided into four groups. The first related to rules of evidence and burden of proof; the second to the law of negligence; the third had application to the particular type of case on trial; and the fourth dealt with the question of damages. And, taking them as a whole, it is our opinion that they fully, fairly, and clearly presented to the jury the law governing the case, and that there is nothing therein which would warrant a reversal.

The verdict was for $25,000, and as fifth ground for reversal appellant contends that the amount allowed was grossly excessive. As has been frequently said, the authority to fix the amount of damages that shall be allowed in a case of this kind is committed almost entirely to the sound discretion of the jury; and, in order to safeguard against the danger of excessive verdicts, the judge of the trial court in ruling on motion for new trial may consider the evidence anew and set aside the verdict of the jury if in his opinion excessive damages have been awarded under the influence of passion or prejudice. On appeal, however, the reviewing court may not exercise the power of revision unless it is able to hold, as matter of law, that the award of damages made by the jury and sustained by the trial court was so grossly disproportionate to any compensation reasonably warranted by the facts as presented on appeal as to shock the sense of justice and raise at once a presumption that it was the result of passion, prejudice, or corruption, rather than an honest, sober judgment. Kirschbaum v. McCarthy (Cal.Sup.) 54 P.(2d) 8; Britting v. Dewes (Cal.App.) 54 P.(2d) 736; Reneau v. Hirsch, 88 Cal.App. 1, 262 P. 1100; Bond v. United Railroads, 159 Cal. 270, 113 P. 366, 48 L.R.A.(N.S.) 687, Ann.Cas.1912C, 50; Horn v. Yellow Cab Co., 88 Cal.App. 678, 263 P. 1025; Gregoriev v. Northwestern Pac. R. Co., 95 Cal.App. 428, 273 P. 76; Kelley v. Hodge Transportation System, 197 Cal. 598, 242 P. 76; Holmes v. California Crushed Fruit Co., 69 Cal.App. 779, 232 P. 178; Zibbell v. Southern Pacific Co., 160 Cal. 237, 116 P. 513; Miller v. Southern California Tel. Co., 216 Cal. 391, 14 P.(2d) 519. In the present case it appears from the evidence adduced on the part of respondent that he was so severely burned that he was confined in the hospital for a period of seven months; that he was burned on both legs from his hips down, the more severe injuries being on his left leg; that skin grafting was necessary; that for a period of two years he has been unable to perform any kind of work, and will not be able to do the work he was doing prior to the injury; and that this disability will continue in the future and that this condition is a permanent one. At the time of the accident he was employed in a lumber yard and was earning $7 per day; and, according to the medical testimony, he will never be able to resume that employment, or any other that requires muscular action. It is true that at the time of the trial he was working as a janitor at $60 per months, but the evidence shows that he is still suffering much pain, and that he will continue to do so for a long time in the future. It is our opinion, therefore, that, in view of the facts disclosed by the evidence as to the nature and extent of respondent's injuries, this court, under the rule declared by the decisions above cited, is precluded from interfering with the verdict of the jury fixing the amount of respondent's damage. Kirschbaum v. McCarthy, supra. Then again, on motion for new trial, this claim of excessive damages was presented to the trial judge, who had listened to the evidence for several weeks, and in ruling adversely upon said motion he refused to modify the amount of the verdict.

The judgment is affirmed.


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