AUSTIN v. RIVERSIDE PORTLAND CEMENT CO

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District Court of Appeal, Fourth District, California.

AUSTIN v. RIVERSIDE PORTLAND CEMENT CO.

BOEHM v. RIVERSIDE PORTLAND CEMENT CO.

Civ. 4739, 4740.

Decided: June 18, 1954

Swing & Gillespie, Donald S. Gillespie, San Bernardino, for appellant. William H. Levit, Long & Levit, Los Angeles, John P. Knauf, Curtis, Knauf, Henry & Farrell, San Bernardino, for respondents.

These actions, for damages for injuries suffered by the plaintiffs when a crane was brought into contact with an overhead power line, were consolidated for trial and on this appeal.

Riverside Portland Cement Co., which will be referred to as ‘Riverside’, owned a cement plant which covered some six acres of ground, and which was operated 24 hours a day. Power for the plant was furnished by high voltage wires owned and maintained by the California Electric Power Co. In July, 1946, Riverside entered into a contract with Haddock Company, herein called ‘Haddock’, whereby Haddock was to do certain construction and alteration work which was still in progress at the time here involved. This contract provided that Haddock should ‘act as an independent contractor, maintaining complete control over its personnel and operations', and that it should perform its work ‘with as little interference as possible with the operation of the cement mill.’

Among the many structures on the premises were two rock crushers. A roadway some 30 feet wide ran north from the entrance to a building housing one of these rock crushers. Three high voltage wires, running east and west, crossed this roadway at a point about 160 feet north of this building. These wires were 43.8 feet above the surface of this roadway, being supported by poles and cross-arms on which were signs reading: ‘High Voltage’. In December, 1946, at the request of Riverside, Haddock had done certain repair work on a ‘mauler and shaft’ which was a part of the equipment in this rock crusher. At that time a truck crane owned by Haddock was brought there to lift this mauler and shaft, which weighed some 20 or 30 tons and which was about 20 feet long. This repair job started December 4, and lasted until December 23rd.

Early in January, 1947, Riverside requested Haddock to again make the same kind of repairs to this mauler and shaft. The accident here in question occurred about six o'clock P. M. on January 10, 1947, while this repair work was being done. Earlier that day the mauler and shaft was removed from the building and placed on the roadway in a north-south position, with its south end 35 or 40 feet north of the building. On the afternoon of that day, one Martin, who was superintendent of all the work being done by Haddock, ordered the same truck crane taken to this area for the purpose of lifting this shaft. This truck was 30 feet long and the boom, which was 50 to 60 feet long, was attached some five or six feet from the rear of the truck. There was a swinging cab for the operator of the crane, and another cab for the operator of the truck. The crane was operated by one Fisher, and the truck was operated by one Hartman, both employees of Haddock. There was a sign affixed to the crane reading: ‘Do not operate this equipment within 6 feet of high tension lines.’

About 5:30 P. M. this truck crane, with the boom lowered, was backed down this roadway under these wires and was stopped with the tip of the boom about 100 feet south of the wires, and about five feet from the ground. These plaintiffs and another man, all employees of Haddock, who had been working on the mauler and shaft, then started to change the cable on the crane, changing it from 2-part line to a 3-part line so that this heavy life could be made. It was then dark, and several electric lights on portable standards had been installed by Haddock. Austin was told by a superior to leave 40 or 50 feet between the shaft and the tip of the crane so that a bulldozer could level the ground in front of the shaft. It was intended to construct a sled or cribbing to the north of the shaft, which was to be slipped under the shaft when it was raised. Austin, who had worked for Haddock since October, as a structural iron worker, was then left in charge of the work. Boehm was one of the men working under him. Austin gave the order and the crane was moved 40 or 50 feet forward, leaving the tip of the crane some 50 or 60 feet from the wires. When the changing of the cable was finished, Austin gave the crane operator a signal and the boom was raised to an angle of about 45 degrees, leaving the hook on the end of the cable about three feet from the ground. Austin then asked Boehm to help him bring the ‘headache ball’, which he intended to attach to the hook at the end of the cable. This was a ball weighing 100 to 125 pounds, the purpose of which was to prevent any slack and keep the cable straight on the drum. When the headache ball was attached to the cable it was intended to move the crane back to within 12 or 15 feet of the shaft, in order to make the lift. Another employee threw the headache ball off the rear of the truck, and the plaintiffs put a wrench through an eye on the ball and started to carry it back to the hook. Austin testified that when they had walked back ‘maybe 30 feet’, he noticed that the hook was ‘dangling a little’, indicating to him that the truck had moved causing the hook to swing several feet; that he had given no order for the truck to move; and that ‘When the hook swung into me I got hold of it with my right hand, and that is when the accident happened.’

Hartman, the truck operator, testified that as he sat in the cab ready to move he got a signal from, Fisher, the crane operator, to go forward; that he was ‘ready to go in a reverse direction towards the lift, towards that shaft, which we were going to lift’; that he ‘eased out real easy’ and moved a matter of inches back toward the shaft; that Fisher gave him one blast to stop and then two blasts to go forward; that he them moved the equipment forward ‘maybe 15 feet, maybe less'; that there was a flash which lit up the countryside; that Fisher gave him a signal and he stopped; that Fisher ‘boomed down’ so fast it raised the front end of the truck; that Fisher then gave him a signal and he moved ahead a couple of hundred feet; that he then went back to where Austin and Boehm were on the ground; that he wondered what he had hit and looked up; and that he could see the wires ‘vaguely, but they were there.’ He also testified that he knew these power lines were in that area and was familiar with the danger of the crane contacting such wires; that he ‘just failed to recollect them being there’; and that the fact that it was dark may have had something to do with his failure to recollect. Fisher did not testify.

Martin, who was not present when the accident occurred, testified that this crane had been used around the premises as needed since October; that high voltage lines extended over other areas of the plant; that on the prior repair of this shaft in December this crane had been brought under these wries and used to make the lift; that prior to that occasion he had asked a Riverside superintendent if they could deenergize the power lines; that permission was refused because that would necessitate closing down the plant; that according to their course of dealing Haddock was not to shut off the power without Riverside's permission; that he knew they were not allowed to operate the crane so it would come within six feet of high-tension lines; that he had ordered the men to keep the boom down when moving in close proximity to wires; that Riverside had asked that this second repair job be done as quickly as possible; that on January 10, he did not advise the power company of the nature of the work being done as he thought this was not necessary; and that he made no request of Riverside on that day to have the line deenergized because ‘I didn't think there was any danger because we had plenty of room to work without going into the lines.’ Austin also testified that he knew there were high voltage lines in the vicinity and knew they were dangerous; that at that time he estimated that the wires were approximately 40 feet from the ground; and that ‘nobody gave a thought of the wires.’ Boehm testified that he had noticed these wires that afternoon and knew they were dangerous, that they were bare and looked like they were made of copper, and that he would have guessed on that afternoon that they were 40 or 45 feet from the ground.

There was also evidence that the only practical way to eliminate all hazard where equipment is to work near power lines is to deenergize the lines; that Riverside knew the location of these high voltage wires and knew that at times the cranes required by Haddock's work would have to work in the vicinity of these lines; that the customary place to prepare a crane for a lift is at the job site; that while the plaintiffs knew that these wires were somewhere in that area they were not conscious at the time of their proximity to the wires, because of the darkness and their attention to their work; that quite often a crane truck was moved forward while the men were carrying the headache ball, to save time; and that ‘possibly’ it was normal for a crane operator to do this without a signal from the man in charge of the ball.

Both complaints alleged that the plaintiffs were injured as a result of Riverside's negligence in permitting and requiring Haddock to operate this crane without any provision for preventing the transmission of electricity if the crane contacted the wires, and without providing adequate lighting so that the wires could be seen from the ground. Second causes of action were directed against the power company. Third causes of action, directed against Haddock, Hartman and Fisher, alleged that Hartman and Fisher, through carelessness on their part, caused the crane to come in contact with high-tension wires. Prior to the trial the actions were dismissed as against Haddock, apparently because of the proceedings before the Industrial Accident Commission. During the trial they were dismissed as against Hartman and Fisher. A jury found in favor of the power company, and for the plaintiffs as against Riverside, awarding Austin $50,000 and Boehm $100,000. Motions for a new trial were denied, but in the Austin case a reduction of the verdict to $25,000 was accepted. Riverside has appealed from the judgments which followed.

The appellant's main contention is that the evidence is insufficient to establish any breach of duty or negligence on its part, which proximately contributed to the injuries sustained by the respondents. The respondents contend that Riverside owed them, as invitees, the duty to exercise ordinary care to provide them with a safe place to work; that Riverside's retention of control of the power lines placed a duty on it to exercise such control with reasonable care so as not to cause injuries to them; that the rule of momentary forgetfulness was also applicable to them; that the danger was not obvious to them because they were required to work after dark where the lighting was not sufficient to disclose the proximity of the wires, and when their attention was necessarily centered on a ‘rush’ job; and that the evidence is sufficient to support the implied finding that Riverside breached its duty to provide them with a safe place to work.

The general rules as to the duty owed by an owner of land to an invitee thereon are well settled. He owes a duty to have his premises in a reasonably safe condition, and to give warning of latent or concealed perils which are known to him and note to the other. The owner is not an insurer as to such an invitee and the true ground of his liability, if any, is his superior knowledge of the perilous condition and the resulting danger to the invitee. The owner is required to use ordinary care for the safety of the invitee, and to give warning of a danger attendant upon the work which the person invited is to do thereon if such danger arises from causes or conditions which are not readily apparent to the eye. Usually, he is not required to give the invitee notice or warning of an obvious danger. Mautino v. Sutter Hospital Ass'n, 211 Cal. 556, 296 P. 76; Shanley v. American Olive Co., 185 Cal. 552, 197 P. 793. In seeking to apply these rules the appellant relies on such cases as Hayden v. Paramount Productions, Inc., 33 Cal.App.2d 287, 91 P.2d 231; Hard v. Hollywood Turf Club, 112 Cal.App.2d 263, 246 P.2d 716; Stackpole v. Pacific Gas & Elec. Co., 181 Cal. 700, 186 P. 354; Stasulat v. Pacific Gas & Elec. Co., 8 Cal.2d 631, 67 P.2d 678. The respondent relies on Young v. Bates etc. Corp., 52 Cal.App.2d 86, 125 P.2d 840; Polk v. Los Angeles, 26 Cal.2d 519, 159 P.2d 931; Revels v. Southern California Edison Co., 113 Cal.App.2d 673, 248 P.2d 986; Lozano v. Pacific Gas & Elec. Co., 70 Cal.App.2d 415, 161 P.2d 74, and Dunn v. Pacific Gas & Elec. Co., Cal.App., 262 P.2d 66 [hearing granted S.Ct.] and similar cases. In most, if not all, of the cases sustaining the theory that there was a failure to provide a safe place to work, there were facts justifying a finding either that the plaintiff had no knowledge of the dangerous condition and the defendant had failed to give an adequate warning, or that the persons whose duty it was to provide the safe place to work were guilty of specific acts of negligence or had permitted conditions to exist in violation of existing rules or ordinances. In high-voltage line cases, as in other cases, liability depends upon the facts of the particular case.

The evidence here is not sufficient to support a finding that the appellant breached its duty to provide the respondents with a safe place to work, or of any other form of negligence on its part. Haddock was in complete charge of the work as an independent contractor, was familiar with these premises, and was experienced in handling cranes in work of this general nature. It was presumably expert in that field, and Riverside had nothing to do with this work except to order it done. These high tension wires were 160 feet from where the repair work began, were 43.8 feet above the ground, and were not only obvious to everyone but their presence and location were actually known to all of the Haddock employees who were involved. The plaintiffs were experienced workmen who had been working on this job for more than three months. The fact that Riverside exercised a permissive control over when the power might be shut off, and the fact that the work was being done after dark, are not controlling under the circumstances which here appear. The contract provided that the work should be done with as little interference as possible with the operation of the plant, and Haddock did much of its work after dark and provided such lights as it considered necessary. Although Riverside requested that this repair job be done as rapidly as possible the work would take many days, and there is no evidence that Riverside knew when the work of lifting this shaft would be performed or that it would be done after dark. If Riverside refused to permit the power to be shut off on the prior occasion when a similar lift was made, and the evidence is conflicting in that regard, that work was done safely and no such accident occurred. On this occasion Haddock's superintendent, who ordered the crane brought in for this purpose, did not ask to have the power shut off because he thought they had plenty of room to do the work without any danger from the lines.

The point where the lift was to be made was some 85 or 90 feet from the wires, and the lift could have been made there without any danger. The accident occurred not while the lift was being made, or even while the crane was being brought into that area for that purpose, but while Haddock's equipment was being prepared for a heavier lift. Not only could the crane have been prepared elsewhere, if reasonably necessary, but after it was brought in to a point where the boom could have been safely raised to any position it was moved 40 or 50 feet toward the wires, for Haddock's convenience, where the main part of the preparation was done. Even at that point there would have been no danger, with the boom raised as it was, had not Fisher taken it upon himself to signal the truck operator to move forward. Even the truck operator then thought the wrong signal had been given and started to move back toward the place where the lift was to be made, but was stopped and directed to go ahead by Fisher.

Riverside could not reasonably be expected to have anticipated that Haddock's employees would make these various changes and movements while preparing its equipment, or that the crane would thus be brought into dangerous proximity to the wires. While it probably knew that this shaft would be taken out of the building, which was 160 feet away from the wires, it could not be expected to foresee that it would be moved 35 or 40 feet away, that an additional 40 or 50 feet would then be used for another purpose, and that the crane would then be raised and moved a further distance bringing it into contact with the wires. Assuming that Fisher could reasonably take it on himself to order this last move, that and these other matters were things done by Haddock employees which, if not entirely unnecessary, were unknown to Riverside and its employees. Riverside had a right to rely on Haddock's ability to equip its own tools without bringing them into contact with these high voltage wires, which were obvious to all and the location of which was known to everyone concerned. It was the duty of Haddock to comply with sections 1784 and 2603 of Title 8 of the Administrative Code, which prohibit the operation of such equipment within six feet of high voltage lines unless they are deenergized or otherwise protected. Section 385 of the Penal Code makes it a misdemeanor to move such equipment within six feet of a high voltage overhead conductor. Under the circumstances here, Riverside had a right to assume that Haddock would not violate these statutes and regulations. Benard v. Vorlander, 87 Cal.App.2d 436, 197 P.2d 42.

While Riverside had knowledge that cranes had been and would be used on this job it also knew that they were usually moved about with the booms down, and it had a right to expect that this crane would be thus moved into position to do this particular work at a point some 100 feet away from the wires. It could not reasonably be required to foresee that, after being brought in, the crane would be moved away a considerable distance and then again moved ahead, without the order of the man in charge, in order to save a few feet of carry for employees of the contractor who were engaged in preparing that equipment for later use at a point nearly 100 feet in the other direction. Not only was no superior knowledge of the dangerous situation by Riverside shown, but the evidence fails to show any failure on its part to exercise ordinary care in providing a safe place to work. A safe place of work was provided which was sufficient if properly used. The dangerous situation here was not caused by any breach of duty or negligence on the part of Riverside, but was created when the independent contractor, Haddock, brought the crane in a position of proximity to the high tension wires and then, through its employees, caused the boom to be raised and thereafter moved into contact with the wires. Hayden v. Paramount Productions, Inc., 33 Cal.App.2d 287, 91 P.2d 231. The evidence clearly shows that this accident was caused by the careless and unnecessary acts of one or more of Haddock's employees, and it could not reasonably be held that any act or failure to act on the part of Riverside was a proximate cause of the injuries to respondents.

It is unnecessary to consider appellant's further contentions that the respondents were guilty of contributory negligence; that they assumed the risk; and that the instructions were erroneous in several respects.

The judgments are reversed.

BARNARD, Presiding Justice.

GRIFFIN and MUSSELL, JJ., concur.

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