PALMQUIST v. MERCER

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District Court of Appeal, Second District, Division 2, California.

PALMQUIST v. MERCER et al.*

Civ. 19438.

Decided: November 10, 1953

Fred N. Howser, Arcadia, and Russell H. Pray, Long Beach, for appellant. Moss, Lyon & Dunn, Sidney A. Moss and Henry F. Walker, Los Angeles, for respondent Tidewater Associated Oil Co. Parker, Stanbury, Reese & McGee, Los Angeles, for respondent H. W. Mercer. Ball, Hunt & Hart, Long Beach, for respondent Union Oil Co. of California.

From a judgment of nonsuit entered in favor of defendants after trial before a jury for damages for personal injuries and breach of warranty, plaintiff appeals.

Facts: On October 10, 1950, plaintiff with Loretta M. Palmquist, now his wife, visited defendant Mercer's riding academy located at 23rd Street and Golden Avenue in Long Beach, California, for the purpose of renting two riding horses. Plaintiff's wife had never ridden a horse before and plaintiff had not ridden for a period of approximately six or seven years. When plaintiff entered the premises of the riding academy he asked the attendant for ‘a couple of old nags,’ and further told him that he would like tame and gentle horses. The attendant stated ‘All right, come into the office.’

Plaintiff entered the office and walked to a desk in the center of the room where the attendant pushed over a register paid and asked him to sign it. Plaintiff signed it by writing his name and address, and then followed the attendant out of the room. He was in the office approximately 15 seconds. He did not read the printed form which he signed nor was he requested to read it. He testified that the name and address on defendant Mercer's exhibit D was in his handwriting, and that any other writing on that exhibit was not his; that he does not recognize defendant Mercer's exhibit D. but remembers that he signed his name on a square piece of white paper.

Defendant's exhibit D contained the following release clause: ‘* * * fully and forever discharge the Equestrotel Riding Academy and the operators thereof from any and all claims, demands and damages, rights of action or causes of action, on account of whether known or unknown, concealed or hidden, external or internal, personal physical injuries, damages or causes or otherwise, or damages or injuries of every kind or character resulting from or which may result from or during the rental time therein provided, either directly or indirectly. * * * I expressly rent the horse at my own risk and assume full responsibility for all matters resulting from or that may occur by reason thereof, and agree to pay the rental charges on demand.’

After leaving the office plaintiff parked his car and again talked to the attendant who picked a horse named ‘Doc’ for plaintiff and another horse for plaintiff's wife. The attendant led the horse away from the trough in which it was feeding and told plaintiff he should go north on Golden Avenue, west on 223rd Street, and then under a pipe trestle in a northerly direction. The horses then proceeded out of the driveway onto Golden Avenue, walked north on Golden to 223rd Street and then turned east for approximately 30 feet. Plaintiff and his companion then turned the horses around and went west on 223rd, turned north up an embankment and into a stable where the horses walked to a water trough and began drinking. While the horses were drinking, plaintiff pulled the left rein of his horse, but the horse refused to leave the trough. Eventually the horses left the trough and returned to 223rd Street, went south on Golden Avenue and returned to the Equestrotel riding academy. The horses stopped inside the premises of the riding academy where plaintiff again talked to the attendant. Plaintiff told the attendant that he was having trouble managing his horse and that his companion said she thought her horse was squeamish. The attendant answered that there was nothing wrong with the horses. He then gave plaintiff and his companion a demonstration on how to direct a horse. After the demonstration plaintiff mounted his horse again. The attendant then led plaintiff and his companion onto Golden to the intersection of 223rd, proceeding west on 223rd until they were standing opposite a pipe trestle which is located on the north side of 223rd Street.

The trestle traverses the Los Angeles River in an east and west direction and carries oil pipe lines for defendants Union Oil Company of California and Tidewater Associated Oil Company. Up to the time plaintiff and his companion stopped south of the trestle with the attendant, the surface on 223rd Street appeared to be hard, consisting of sand, dirt, gravel and oil all mixed together. When asked, ‘Did you see any path or trail or roadway under the trestle?’ plaintiff answered ‘Yes,’ indicating an area under the pipe trestle. As they were stopped south of the trestle, the attendant told plaintiff that he would have to bend over to go under this trestle, and then to ride as far as they liked.

Plaintiff and his companion proceeded under the trestle and followed the road, indicated by car tracks, around the bend in a northerly direction. After plaintiff passed the trestle he proceeded north on the road for about 400 feet, then he turned to the left and called to his companion. As he turned his head to the left his horse reeled about to the left and began running back on the road towards the trestle. The horse picked up speed and plaintiff tried to stop it by pulling on the reins with both hands. At first he did not pull hard; then he tried to stop the horse by pulling the reins back with both hands as hard as he could, but the horse was going all the faster. The horse passed the other rider and ran around the bend in the road towards the trestle.

Immediately before the accident hereinafter described, plaintiff remembers seeing underhanging beams of the trestle in front of him. At that time he was eight to ten feet north of the beams which form the understructure of the pipe trestle and which are located immediately above the traveled area under the trestle at a height of six feet. At that time he was flat in the saddle and bent over to the right and around the saddle, his head held down as far as he could get it. His left shoulder was pointing upward and his right arm and head were down to the right. His left shoulder and neck hit a stationary object such as the vertical beams of the understructure of the pipe trestle located above the traveled area under the trestle, and he blacked out.

When he regained consciousness he was lying immediately to the south of the pipe trestle, approximately five feet from the nearest substructure of the trestle and immediately south of the traveled area under the trestle. As a result of the accident he is permanently paralyzed from the waist down.

The following is a photograph of the area where the accident occurred.

Questions presented on the appeal against the defendant Union Oil Company of California.

First: Was there a public road beneath the Union Oil Company's trestle?

No. Plaintiff conceded that the accident occurred on the property controlled by the Los Angeles Flood Control District to the north of Long Beach in a general easterly and westerly direction. In 1919, that portion of this road, 720 feet long, extending across the flood control channel, was abandoned by appropriate action and was placed under the control of the Flood Control District. From that time until the happening of the accident, October 10, 1950, by ordinance the Flood Control District had been vested with complete control over the channel and nothing by way of impeding flow of water or changing of the property was allowed except by permission of the Flood Control District.

On August 23, 1922, defendant Union Oil applied to the Flood Control District for permission to construct a pipeline trestle across the flood control channel at Wilmington Street. September 12, 1922, the chief engineer of the Flood Control District by letter submitted his recommendations to the Board of Supervisors, the letter containing a provision that the lower members of the deck stresses must not extend more than two feet below the official top of the west levee. The Board of Supervisors acted upon the matter and by resolution authorized the construction of the trestle in accordance with the recommendation of the chief engineer.

Union Oil proceeded to and did erect the trestle in accordance with the plans submitted to the Flood Control District. The bottom chord of the inverted queen post trusses extended four feet four and one-half inches below the top of the trestle. The area underneath the trestle probably changed due to the action of flood waters from time to time in the ensuing years. At the time of the accident the clearance of the supporting trestle was approximately six feet.

At the time the trestle was completed, access to the property of the Flood Control District from the east was unimpeded, both to the north and to the south of the trestle. It was not until approximately 10 years later that certain changes were made to the north and east of the easterly terminus of the trestle that impeded access to the area of the flood control channel to the north of the trestle from its east end. During the period from 1931 to 1941 there appeared to be marks, as foot prints or hoof prints, growing into pathways under the trestle at various locations. The locations of these changed from time to time. Also during part of such time there was a wooden barrier erected across what would be an extension of 223rd Street at a point some distance west of the easterly end of the trestle, and just south of it. This was placed there by the Flood Control District.

For the last several years prior to the accident there had developed a well defined area of travel underneath the trestle at certain bents to the west of the east boundary line of the flood control channel.

During the years which had followed the construction of the pipe line trestle, and prior to October 10, 1950, Union Oil from time to time notified the Flood Control District of the necessity of repairing the trestle and received permission from the District to do so. From 1945 until the date of the accident people indiscrimately entered the area of the flood control channel, riding about on horse back, crossing underneath the pipe line trestle at many points, even under that portion traversing the river bed itself, where there had been eroded a deeper channel affording greater clearance.

On the date of the accident there had become worn a well defined area, path or trail which divided and passed to either side of the polings constituting the bent at the western end of the two most easterly spans of the trestle. This is the area where the accident occurred.

For five years prior to the accident the black top of 223rd Street east of the flood control channel ended at the gate to the yard of the property of the Oil Operators, Inc., at the southwest corner of Golden Avenue and 223rd Street. Beyond that point the dirt was sprayed with oil and dragged about once a year by employees of Oil Operators, Inc. This operation included the area south of the trestle and perhaps under the trestle to some extent.

There was no action on the part of defendant Union Oil Company to excavate, fill, level, surface or treat the ground area within the flood control channel at any time other than the sinking of pilings, etc.

Various accidents had occurred at the point where the instant tragedy took place, and defendant Union Oil had knowledge thereof. The record is entirely devoid of any proof to show that the road where the accident occurred was at any time since 1922 maintained by any road district, road commission or other public agency. It was occupied solely by the Flood Control District for flood control purposes.

It is clear that when land is held by the state or a subdivision thereof, such as the Flood Control District, and has been dedicated to a public use, no adverse holding thereof will give title to the adverse claimant. (Ortiz v. Pacific States Properties, 96 Cal.App.2d 34, 37, 215 P.2d 514.)

Union Oil Company had no power to acquire any rights in the property owned by the Flood Control District. It had no right to forbid the trespassing under its trestle, and the fact that it had on occasion installed signs indicating the height of the trestle and warning to people who passed under it did not increase its power. It could not have prohibited the passage of persons or animals or vehicles upon any part of the flood control right of way. Its sole power was to maintain the trestle and to prevent trespassing thereon.

Second: Was the maintenance of the pipe trestle a nuisance?

No. The trestle was maintained by express permission of the Flood Control District and not on any public street or highway. Therefore it could not be characterized as a nuisance. (Barrett v. Southern Pac. Co., 207 Cal. 154, 160, 277 P. 481; Gerberich v. Southern California Edison Co., 5 Cal.2d 46, 51, 53 P.2d 948.)

Third: Since plaintiff contends that in certain particulars the trestle was not built in conformity with the permit granted by the Flood Control District, was defendant Union Oil Company liable?

No. For the reason that an examination of the record discloses that any changes in the construction of the trestle from the requirements of a permit issued by the Flood Control District were subsequently ratified and approved by the District, and that it accepted the trestle as maintained. Therefore plaintiff is not in a position to complain of the manner in which the trestle was maintained. At most he was a licensee to whom defendant owed only the duty of refraining from wanton or willful injury. (Oettinger v. Stewart, 24 Cal.2d 133, 137[5], 148 P.2d 19, 156 A.L.R. 1221; Demmon v. Smith, 58 Cal.App.2d 425, 432[2], 136 P.2d 660.) Therefore plaintiff was obliged to take the premises as he found them.

Plaintiff relies upon numerous cases in support of the proposition that since defendant Union Oil Company had knowledge of prior accidents it owed a duty to correct a dangerous or defective condition. The cases cited by plaintiff are not here applicable for the reason that such authorities in the main had to do with dangerous conditions in structures over or on public streets or highways. In the present case defendant Union Oil Company had no right to make any changes in the path where the accident occurred.

As was heretofore stated the only one that had any authority over such property was the Flood Control District. In addition plaintiff conceded that he knew the condition of the trestle where the accident occurred prior to the time of the accident.

Davoust v. City of Alameda, 149 Cal. 69, 84 P. 760, 5 L.R.A.,N.S., 536 and Davis v. Pacific Power Co., 107 Cal. 563, 40 P. 950, are clearly distinguishable on their facts from the instant case. In the Davoust case defendant was a trespasser and was dealing with a highly dangerous element, to wit, a live electric wire. Likewise the plaintiff in the case was a licensee and the case does not deal with defendant's liability where it owned or was licensed to be on the property.

In the Davis case the trial court submitted to the jury the question of whether or not defendant, erector of a revolving shaft causing the injury, had permission from the lessee, the admitted possessor of the premises, to erect and operate the shaft. The evidence was in conflict and the jury found defendant had no such permission. Clearly here under the finding of the jury defendant was a trespasser and the case is not applicable to our situation.

Fourth: Did plaintiff assume the risk?

Yes. The uncontradicted evidence discloses that plaintiff knew or should have known that his horse was unmanageable. He knew the structure made passing under the trestle hazardous, and that he must bend down to pass under it. He knew that he was not an experienced horseman, and also knew that he could return to the riding academy through various ways. Therefore in riding as he did he assumed the risk of the unfortunate injury which occurred. (See Hayes v. Richfield Oil Corp., 38 Cal.2d 375, 384 et seq., 240 P.2d 580; Powers v. Raymond, 197 Cal. 126, 131, 239 P. 1069.)

It is clear that the directed verdict as to defendant Union Oil Company was correct.

II

Question presented on the appeal against the defendant Tidewater Associated Oil Company.

Was there any showing of negligence on the part of Tidewater Associated Oil Company?

No. The uncontradicted evidence disclosed that in November of 1936, defendant Union Oil Company had granted written permission to Tidewater Associated to place and maintain one pipe line upon the trestle which Union Oil had constructed. Under this agreement Union Oil had retained the sole direction and control of the pipe trestle and, for the permission of maintaining the one pipe line on the trestle, Tidewater Associated agreed to pay Union Oil one half of Union Oil's cost and expense of construction, maintenance, operation, repair, renewal or removal of the trestle.

Tidewater Associated had no right, power or privilege to in any way do anything in connection with the construction, maintenance, operation, repair, renewal or removal of the trestle. Its sole privilege was to place and maintain one pipe line upon the trestle with the obligation to reimburse defendant Union Oil for a percentage of Union Oil's cost and expense in regard to the trestle. (See MacLeod v. Fox West Coast Threatres Corp., 10 Cal.2d 383, 387, 74 P.2d 276.) The trestle was neither planned nor constructed by defendant Tidewater Associated, who therefore could not have been negligent in its construction or maintenance. (Denman v. City of Pasadena, 101 Cal.App. 769, 772 et seq., 282 P. 820; Bernard v. Vorlander, 87 Cal.App.2d 436, 440, 197 P.2d 42; Whalen v. Ruiz, 40 Cal.2d 294, 303, 304, 253 P.2d 457.)

In view of our conclusion on this point it is unnecessary to discuss other points urged by plaintiff against this defendant. The trial court's judgment was correct.

III

Question of the liability of defendant Mercer, doing business under the fictitious name and style of Equestrotel Riding Academy.

Did plaintiff release defendant Mercer from any liability for damage resulting from the hiring of the horse by plaintiff from such defendant?

Yes. At the time the horse was hired plaintiff signed a release reading in part as follows: ‘fully and forever discharge the Equestrotel Riding Academy and the operators thereof from any and all claims, demands and damages, rights of action or causes of action, on account of whether known or unknown, concealed or hidden, external or internal, personal physical injuries, damages or causes or otherwise, or damages or injuries of every kind or character resulting from or which may result from or during the rental time therein provided, either directly or indirectly * * * I expressly rent the horse at my own risk and assume full responsibility for all matters resulting from or that may occur by reason thereof, and agree to pay the rental charges on demand.’

The general release voluntarily executed by plaintiff was valid and binding. Plaintiff admits that he signed it and that no unfair tactics were used to get him to sign it. There is no claim of fraud or misrepresentation, or that he was prevented from reading it if he so desired. Therefore it was binding upon him and it is immaterial whether he read it or not.

The rule is thus accurately stated in Smith v. Occidental, etc., Steamship Co., 99 Cal. 462, 470 et seq., 34 P. 84, 86: ‘The general rule is that, when a person with the capacity of reading and understanding an instrument signs it, he is, in the absence of fraud and imposition, bound by its contents, and is estopped from saying that its provisions are contrary to his intentions or understanding.’ (See also Nichols v. Hitchcock Motor Co., 22 Cal.App.2d 151, 153[1] et seq., 70 P.2d 654; Knox v. Modern Garage, etc., Shop, 68 Cal.App. 583, 587[2], [3], 229 P. 880.)

There is likewise no merit in plaintiff's contention that the release is void as against public policy. A similar contention was made in Werner v. Knoll, 89 Cal.App.2d 474, where at page 475[1], 201 P.2d 45, at page 46, the court says:

‘Clearly said section 1668 does not declare unlawful all contracts, the object of which is to exempt individuals from the consequence of their own acts, but only those contracts which would exempt one from the consequences of his own fraud, willful injury or violation of law whether willful or negligent. It is noteworthy that the only use of the word negligent in said section is in a restrictive sense and only in connection with violations of law. Therefore it necessarily follows, that by the obvious omission from the provisions of said section 1668 of the Civil Code, contracts seeking to relieve individuals from the results of their own negligence are not invalid as against the policy of the law as therein provided, and hence are neither contrary to public policy nor expressed provision of the law as set forth in said section 1667.’ (See also Inglis v. Garland, 19 Cal.App.2d Supp. 767, 771[3], 64 P.2d 501.)

Nor is plaintiff's proposition sound that the release is void because by its terms it is broad enough to include a release for gross negligence and possibly for willful acts of such defendant. This contention was answered adversely to plaintiff's claim in Werner v. Knoll, supra, 89 Cal.App.2d at page 476, 201 P.2d at pages 46, 47.

The judgment and order are and each is affirmed.

McCOMB, Justice.

MOORE, P. J., and FOX, J., concur.

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