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

Nick MEZERKOR, Plaintiff and Appellant, v. TEXACO OIL COMPANY, a corporation, and Andrew Volosing, Defendants and Respondents.

Civ. 24259.

Decided: October 24, 1968

Salvador A. Liccardo, Caputo, Liccardo & Burriesci, San Jose, for plaintiff. Campbell, Custer, Warburton & Britton, by John R. Fitzsimmons, Jr., San Jose, for respondents. Edward I. Pollock, Theodore A. Horn, Los Angeles, Robert G. Beloud, Upland, Leonard Sacks, Hollywood, amici curiae.


In his petition for rehearing plaintiff seeks to avoid the facts and circumstances and the instructions which bear on his contributory negligence by dependence on the theory that wilful and wanton misconduct in disregarding safety orders will bar assertion of the defense of contributory negligence. (Levizon v. Harrison (1961) 198 Cal.App.2d 274, 279—282, 18 Cal.Rptr. 284. See also Williams v. Carr (1968) 68 A.C. 603, 607—611, 68 Cal.Rptr. 305, 440 P.2d 505; Donnelly v. Southern Pacific Co. (1941) 18 Cal.2d 863, 869—870, 118 P.2d 465; Givens v. Southern Pacific Co. (1961) 194 Cal.App.2d 39, 43—44, 14 Cal.Rptr. 736; Rest.2d Torts, ss 500 and 503; Prosser, Torts (3d ed. 1964) p. 436; and cf. Rogers Materials Co. v. Ind. Acc. Com. (1965) 63 Cal.2d 717, 721—723, 48 Cal.Rptr. 129, 408 P.2d 737; Mercer-Fraser Co. v. Industrial Acc. Com. (1953) 40 Cal.2d 102, 115—131, 251 P.2d 955; and White v. Workmen's Comp. App. Bd. (1968) 265 A.C.A. 132, 137—138, 71 Cal.Rptr. 49.) He reasserts his claim that it was error to refuse to give the instructions which he offered on this theory. Examination of the new authorities cited reveals that in order to sustain a finding of wilful and wanton misconduct there must be knowledge of the dangerous operation or condition and some inference of deliberate choice in the failure to rectify it. As pointed out in the opinion, there is no evidence to show that the defendant had any knowledge that anyone was going inside the boxed mechanism to start the compressor engine. On the facts, the court properly refused the offered instructions, and the issue of contributory negligence was not foreclosed, conditionally or unconditionally.

Rehearing denied.