COURTELL v. Hazen M. McEachen and Robert A. Kegel, as Administrator of the Estate of B. H. McEachen, Deceased, Appellants.'*

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

Donna Jean COURTELL, a minor, by Ruth E. Billings, her guardian and litem, Plaintiffs and Respondents. v. B. H. McEACHEN, Hazel M. McEachen, Harry Plummer, Robert A. Kegel, as Administrator of the Estate of B. H. McEachen, Deceased, and Doe Two to Doe Ten, Defendants, Hazen M. McEachen and Robert A. Kegel, as Administrator of the Estate of B. H. McEachen, Deceased, Appellants.'*

Civ. 22167.

Decided: September 18, 1957

Murchison & Cumming, R. Bruce Murchison, Warren D. Allen, Los Angeles, for appellants. Frank W. Swann, Jr., Beverly Hills, for respondents.

Donna Jean Courtell was coming home from school one day in 1953. She was then three months less than six years old.

On her way home, the little girl had to pass a lot littered with lumber and debris from an old house that had been torn down there.

The lot was owned by Mr. B. H. McEachen and his wife as joint tenants.

Mr. McEachen had arranged with a man by the name of Harry Plummer to burn the litter on the lot. Mr. Plummer was to get a month's free rent in one of Mr. McEachen's houses nearby—$65.00—for the work.

The burning had been going on for several days, a part of the debris at a time. The burning was done at about the same place, near the center of the lot.

No permit to burn had been obtained from the county fire authorities.

As Donna passed, she saw some of her playmates, throwing sticks around on the lot. One of them called to her to play with them.

So the little girl ran onto the lot, jumped over a pile of wood, and squatted down to pick up a stick for herself, right at the place where Mr. Plummer had been burning the litter.

The little girl's clothing took fire from live embers on the ground. She was terribly burned, was in the hospital for weeks, and her body will carry disfiguring scars as long as she lives.

On the day Donna was injured Mr. Plummer had gone home, and left the fire unattended. This was contrary to specific requirements of the county fire ordinance.

A jury awarded Donna $50,000 damages, caused by negligence of the owners of the lot. The trial judge denied a motion for a new trial, and the administrator of Mr. McEachen's estate and his widow appeal from the judgment.

This statement of facts has been made in conformity with the rule in the law of appeals after a jury's verdict. There were conflicts in the evidence, and the facts could have been stated differently by using inferences contended for by defendants. However, appellants do not dispute that Donna was burned and seriously injured, and do not contend that the amount of damages is excessive.

The appeal is based upon the following seven points, as set forth in appellants' brief:

1. The court erred in instructing the jury as a matter of law that Donna Jean was incapable of contributory negligence.

2. The court erred as a matter of law in refusing to instruct the jury on the theory of assumption of risk.

3. The court erred as a matter of law in admitting into evidence as against appellants county ordinances Nos. 5520 new series and 2947 new series, and in permitting Captain LeMay to testify that he would not have issued a permit.

4. The court erred in instructing the jury on the status of Donna Jean to the effect that she was a licensee and in the manner in which these instructions were worded.

5. The court erred in instructing the jury as a matter of law that the defendants McEachen failed to use ordinary care.

6. Having taken the issue of defendants' negligence from the jury, the court erred (1) in also taking from the jury the issue of proximate cause, and (2) in not instructing the jury in what particulars he deemed the defendants McEachen negligent, leaving his instruction on proximate cause in confusion and conflict.

7. The court erred in instructing the jury that the defendants were carrying on active operations on the premises at the time of the accident.

It will be observed that with the exception of No. 3, all of appellants' points have to do with instructions given or refused. Therefore, the instructions will be examined first.

Point No. 1. The court erred in instructing the jury as a matter of law that Donna Jean was incapable of contributory negligence.

The instruction complained of is as follows:

‘Contributory negligence is negligence on the part of a person injured, which, cooperating in some degree with the negligence of another, helps in proximately causing the injury of which the injured person thereafter complains.

‘One who is guilty of contributory negligence may not recover from another for the injury suffered.

‘However, in this case you are instructed that there was no contributory negligence either on the part of the plaintiff or her parents.’

The instruction before the trial judge modified it was No. 103 BAJI, and was requested by both plaintiff and defendants. The judge struck out a portion of the instruction as offered, and added the words in italics.

This poses the question: As a matter of law, was this particular child, three months less than six years of age at the time she was injured, capable of negligence?

In Crane v. Smith, 23 Cal.2d 288, 144 P.2d 356, our Supreme Court held that a child of three was too young to be guilty of contributory negligence.

In Carrillo v. Helms Bakeries, Ltd., 6 Cal.App.2d 299, 44 P.2d 604, a judgment was reversed for failure to instruct on contributory negligence as to a child five years of age. In that case the court stated that the capacity of a child at a particular time to exercise care to avoid a particular danger is a question of fact for the jury.

In Smith v. Harger, 84 Cal.App.2d 361, 191 P.2d 25, the trial court was sustained in submitting the issue of contributory negligence to a jury as to a child of the same age as Donna—three months less than six years old.

In Ellis v. D'Angelo, 116 Cal.App.2d 310, 253 P.2d 675, it was held that a four-year-old child can not be guilty of negligence as a matter of law.

In 107 A.L.R. 107 it is said, ‘In cases of injuries to children between five and six years of age the correct rule would seem to be that the doctrine of exclusive presumption of incapacity should apply. This is true not so much because the child is lacking is knowledge, as it is lacking in judgment and discretion.’

The recent case of Knight v. Kaiser Co., 48 Cal.2d 778, 312 P.2d 1089, has been helpful; not for its decision (It affirmed an order sustaining a demurrer without leave to amend in an attractive nuisance case.) but for the discussion, by both affirming and dissenting justices, of legal principles in negligence cases where children of tender years are injured.

Mr. Justice Traynor comments upon the evil of fixing rigid rules in these cases. This is true in the case now before this Court. Ability to comprehend and avoid danger depends upon the mental development of a particular child. Human experience tells us that no two children are ever exactly alike. Within the limits of judicial discretion, this then is a question for determination by the trial court, and the age of the child is not the sole and only criterion to be used.

This is the approved rule in testing competence of children to testify as witnesses in our courts. Code Civ.Proc. § 1880; People v. Ernst, 121 Cal.App.2d 287, 263 P.2d 114, and cases cited.

Therefore, this Court has concluded that it was not prejudicial error in this case for the trial judge to give the instruction complained of.

The defense of assumption of risk is so closely associated with the defense of contributory negligence (Coole v. Haskins, 57 Cal.App.2d 737, 135 P.2d 176) that no further comment upon that point of appellants is needful.

No prejudicial error appears in the instructions as to the little girl's status as a licensee, or the wording thereof. Or in the instructions as to ordinary care by defendants. Or the instructions as to proximate cause and negligence given and refused.

The instructions as a whole fully and fairly advised the jury of the law of the case. After examining them and the evidence, this Court is of the opinion that there was no prejudicial error in this case that would require reversal of the judgment. Const. Art. VI, Sec. 4 1/2; Code Civ.Proc. § 475; Hobart v. Hobart Estate Co., 26 Cal.2d 412, 159 P.2d 958; Moise v. Fairfax Markets, 106 Cal.App.2d 798, 236 P.2d 216.

Referring now to appellants' claim of error as to the admission in evidence of county ordinances, and permitting a fire captain to testify that he would not have issued a permit to burn on the premises.

No objection to the admission in evidence of the ordinances was made at the trial. Counsel for defendants probably assumed that objection had been made, because he said, ‘My objections are noted.’ But, treated as an objection, this was not so specific as to inform the court of its basis. Cf. Rau v. Redwood City Woman's Club, 111 Cal.App.2d 546, 245 P.2d 12. And in any event the objection was not well taken, for the ordinances clearly applied to the facts in the case, and were admissible in evidence.

Nor was it prejudicial error to admit the testimony of the fire captain. If defendants had complied with the law, and if the fire authorities had refused a fire permit there would have been no fire on the lot and this little girl would not have suffered as she did and would not have been disfigured for life.

While the judgment can be affirmed on other grounds, it is the opinion of this Court that it was gross negligence for Mr. Plummer to leave the fire unattended, and that it was negligence to burn on the premises at all, with or without a permit from the county fire authorities, and that that negligence clearly fixes the liability of the owners of the lot.

It doesn't make any difference whether Mr. Plummer was an employee of the McEachens or an independent contractor. The trial judge instructed the jury that he was an independent contractor.

Without approving that instruction, it was in any event the duty of the owners of the lot to maintain their property in a safe condition. Brown v. George Pepperdine Foundation, 23 Cal.2d 256, 143 P.2d 929; Rest. Torts, Negligence p. 1138. And that duty may not be evaded by claiming that the negligence was that of an independent contractor. Finnegan v. Royal Realty Co., 35 Cal.2d 409, 218 P.2d 17; Satterlee v. Orange Glenn School Dist., etc., 29 Cal.2d 581, 177 P.2d 279; Alechoff v. Los Angeles Gas & Elec. Corp., 84 Cal.App. 33, 257 P. 569.

The principle is clearly stated by our Supreme Court in Snyder v. Southern California Edison Co., 44 Cal.2d 793, at page 800, 285 P.2d 912, at page 916:

‘The principle may be generalized that one who employs an independent contractor to perform work which is either extra-hazardous unless special precautions are taken or which is inherently dangerous in any event is liable for negligence on the part of the independent contractor or his servants in the improper performance of the work or for their negligent failure to take the necessary precautions. This broad principle has been applied not only to excavations on private property, but on the public highway as well, to blasting operations, to the construction of a dam, to the use of fire in clearing land, to the demolition of walls and old buildings, and to several other types of intrinsically dangerous enterprises.’

The judgment is affirmed.

DRAPEAU, Justice pro tem.

WHITE, P. J., and FOURT, J., concur.