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District Court of Appeal, First District, Division 3, California.

John VIERRA, Plaintiff and Appellant, v. FIFTH AVE. RENTAL SERVICE and Robert L. Berkley, Defendants and Respondents.

Civ. 19493.

Decided: January 17, 1963

Boccardo, Blum, Lull, Niland & Teerlink by Edward J. Niland, San Jose, for appellant. Ropers, Majeski & Kane, Redwood City, for respondent Robert L. Berkley. Walcom & Harmon, San Francisco, for respondent Fifth Avenue Rental Service.

Whether it was proper for the court to give instructions on assumption of risk is the crux of this personal injury case.

Plaintiff Vierra lost an eye after it was struck by a flying piece of metal which had broken from a gad, a wedge-shaped tool somewhat like a chisel, which was being pounded with a sledge hammer by defendant Berkley. Berkley owned a building which Vierra rented and operated as a restaurant. Berkley, who was a builder, was installing a door in the leased premises. On the day before the injury, he had removed plaster and joists, and on the day of the accident he engaged in the process of removing a concrete and steel footing about 18 inches high. This he did in three steps: first, by scoring, a process in which concrete was chipped away in vertical lines in order to weaken the shell so that it would break in a straight line; second, by cutting the steel bars in the footing with a hacksaw; and third, by breaking the concrete by pounding the gad against and into the concrete by a sledge hammer. During this third phase, plaintiff came, in order to get some bottles, to a point nine feet from the footing (the distance was testified to variously, but plaintiff, at one part of his deposition, which was admitted in evidence, testified that it was nine feet, and as this is the most favorable to respondent, it is accepted by us), and there he was struck. In his deposition, two questions were asked of plaintiff and answered by him as follows: ‘Q. As you were walking up to the point where the accident happened, you saw Mr. Berkley using a sledge hammer? A. Yes. Q. Did you see pieces of concrete and so forth flying around? A. Yes.’ While Berkley was doing the scoring, some pieces of cement would fly about six or seven feet. Berkley did not warn Vierra or the waitress to stay back during the operation with the sledge hammer and gad.

This action has been brought against Fifth Avenue Rental Service, which rented the gad to plaintiff, Berkley having asked plaintiff to get this tool for him, and against Berkley himself.

Appellant makes the contentions that (1) there was no substantial evidence upon which the jury could find assumption of risk by him, and that it was prejudicially erroneous for the court to instruct on that subject; and (2) certain safety orders of the Industrial Accident Commission precluded the defense of assumption of risk. Appellant does not complain of the form or contents of the instructions, but claims they were inapplicable and should not have been given.

Evidentiary Support for Instructions on Assumption of Risk

Appellant argues that although he was warned to stay back at the time of the phase of scoring, he was not so warned at the time of the sledge hammer and gad part of the work, and that there is no substantial evidence to show that he knew of any risk, and, more specifically, the particular risk of being struck by a flying fragment of the gad as distinguished from flying particles of concrete.

We do not agree with appellant's contentions. The two questions and answers in plaintiff's deposition, as quoted above, make the matter of assumption of risk a subject for the jury's consideration. It is true that plaintiff must have known and appreciated the danger involved, and must have voluntarily accepted the risk in order to bring the defense of assumption of risk into operation, and that plaintiff testified that he saw no danger, but the knowledge may be inferred from the circumstances of the case, and it is not necessary that the plaintiff admit his knowledge. (Gomes v. Byrne, 51 Cal.2d 418, 421, 333 P.2d 754; Warren v. Sullivan, 188 Cal.App.2d 150, 154, 10 Cal.Rptr. 340.)

Appellant argues that his affirmative response to the question whether he saw ‘pieces of concrete and so forth flying around’ does not indicate the time of his seeing these things, and does not mean that he saw them immediately before the accident. The question and answer, however, directly follow another question in which plaintiff was asked if he saw Berkley using a sledge hammer as he walked up to the point where the accident happened, and his answer was ‘yes.’ The jury may have fixed the time of plaintiff's viewing of the flying pieces of concrete from the immediately preceding question and answer.

We believe that if the jury chose to believe that plaintiff knew that there was danger from flying particles and voluntarily placed himself in a position of such danger, he could be held to assume the risk even though the particles which he had observed were of concrete and the particle which actually caused his injury was a fragment of the steel gad. The risk was sufficiently similar. Flying bits of concrete or flying bits of steel would present essentially the same kind of hazard.

The case is distinguishable from that of Hall v. Macco Corp., 198 Cal.App.2d 415, 18 Cal.Rptr. 273, in which it was held that the court properly denied instructions on assumption of risk where there were two risks involved and no distinction was made between the two in the proposed instructions. At the time of the accident, plaintiff was watching a burning bridge. There was no evidence that plaintiff had actual knowledge of a gas line under the bridge, which caused an explosion by which she was injured. There was a marked difference between the two risks in the Macco Corp. case, and it is this which distinguishes it from the case before us.

A party has a right to instructions on his theory of the case if it finds support in the pleadings and evidence, including any inference which may properly be drawn from the direct evidence. (Daniels v. City and County of San Francisco, 40 Cal.2d 614, 623, 255 P.2d 785; Ziegler v. Santa Cruz, etc., School Dist., 193 Cal.App.2d 200, 203, 204, 13 Cal.Rptr. 912.) We believe that under the circumstances defendants were entitled to instructions on their theory of assumption of risk.

We note, too, that explanatory jury instruction BAJI No, 103–A was given, which reads as follows: ‘Whether or not it is negligence for one to proceed into a dangerous situation of which he had previous notice is a question of fact not always and necessarily to be answered in the affirmative. If at the time he was aware of the danger and also appreciated its extent, and if he voluntarily and unnecessarily exposed himself to it, then he was negligent as a matter of law. But to forget a danger once known to exist or to be in a state of abstraction or absentmindedness [or to err in judgment] may or may not be negligent, depending on whether or not in the circumstances it shows a want of ordinary care. Also the jury must consider the character of the notice received, whether recent or remote, and the impression such information would make upon the mind of an ordinarily prudent person in a like situation.’ Although this instruction is at least equally applicable to the subject of contributory negligence, nevertheless it has been remarked that it gives the jury the elements of assumption of risk (Austin v. Riverside Portland Cement Co., 44 Cal.2d 225, 236, 282 P.2d 69), and it contains limitations relating to the character of the notice received, the time thereof and other tests relevant to the circumstances of this case. In this case, the only possible element of contributory negligence was the presence of plaintiff at the place where the accident occurred; wherefore, the explanatory matter in instruction 103–A in all likelihood was understood by the jury to apply to both defenses, namely, contributory negligence and assumption of risk.

Indeed, it is quite possible that the jury found against plaintiff on the ground of contributory negligence because of his approaching the place where Berkley was hammering the gad, or spike, with a sledge hammer. The jury may have found that, in the exercise of ordinary care, he should have known that he was entering a place of danger, irrespective of the subject of flying particles. Appellant does not complain of the giving of instructions on contributory negligence. Even if the evidence is not sufficient to sustain the defense to which an instruction applies, a reversal may not be had if the evidence on other defenses is sufficient to sustain the verdict. (MacLean v. City and County of San Francisco, 151 Cal.App.2d 133, 139, 311 P.2d 158; Lewis v. Western Truck Line, 44 Cal.App.2d 455, 469, 112 P.2d 747; Brandes v. Rucker-Fuller Desk Co., 102 Cal.App. 221, 228, 282 P. 1009.)

Safety Orders as Related to Assumption of Risk

Appellant states, correctly, that instructions on the defense of assumption of risk should not be given where there is evidence of a violation of a safety order on the part of a defendant. (Finnegan v. Royal Realty Co., 35 Cal.2d 409, 430, 431, 218 P.2d 17; Guerrero v. Westgate Lumber Co., 164 Cal.App.2d 612, 618, 331 P.2d 107.) Appellant then states in his brief that General Safety Order 3275 requires that when there is danger of injury from flying particles, precautions shall be taken in order to protect employees and to prevent injury; and that General Safety Order 3288 provides that when employees are working in locations where there are eye hazards due to flying particles, suitable precautions shall be taken for the safety of such employees. At the trial, plaintiff did not present these safety orders in evidence, and did not request any instructions regarding them. The only mention of them at the trial was by defendants, who, in the absence of the jury, referred to them as supporting defendants' motions for nonsuit. It was the contention of defendants that these safety orders were binding on Vierra as lessee and operator of the premises, in that he must follow the safety orders for the protection of the general public; that he did not follow them and, therefore, that he himself was guilty of negligence which would bar his recovery against defendants. These contentions were impliedly overruled by the trial court by the denial of the motions for nonsuit. The action of plaintiff's counsel in respect of these safety orders was purely defensive in his argument against the motions for nonsuit. At no time were they presented, or offered to be presented, to the jury. The familiar rule applies, that issues will not be considered for the first time on appeal. (Apra v. Aureguy, 55 Cal.2d 827, 831, 13 Cal.Rptr. 177, 361 P.2d 897.)

Judgment affirmed.

DEVINE, Justice.

DRAPER, P. J., and SALSMAN, J., concur.

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