GREY v. FIBERBOARD PAPER PRODUCTS COMPANY (1966)

Plaintiff brought this action to recover the damages he suffered when, as a mechanic working on defendant's paper cutting machine, his hand was caught in the rollers and his arm was drawn in after his hand by the rollers' crushing grasp. The jury awarded plaintiff $16,800, and from the resulting judgment defendant has appealed, stressing two contentions: (1) that the trial court erred in not instructing the jury on the doctrine of assumption of risk; (2) that there was no substantial evidence of defendant's negligence. We have concluded that whatever may be said about the second point, the judgment should be reversed because the jurors were not directed to determine whether or not plaintiff had assumed the risk of that happening which did take place.

Implicit in the jurors' verdict are their conclusions that the accident that occasioned plaintiff's injuries was caused, at least in part, by defendant's negligence and there was no negligence on plaintiff's part that contributed to the affair. Both of these conclusions may be amply supported by evidence and it nevertheless be true that a plaintiff may not recover because of the doctrine of assumption of risk. As stated in what has become the leading case of Prescott v. Ralphs Grocery Co. (1954) 42 Cal.2d 158, 161–162, 265 P.2d 904, 906: ‘The defenses of assumption of risk and contributory negligence are based on different theories. Contributory negligence arises from a lack of due care. The defense of assumption of risk, on the other hand, will negative liability regardless of the fact that plaintiff may have acted with due care * * *. It is available when there has been a voluntary acceptance of a risk and such acceptance, whether express or implied, has been made with knowledge and appreciation of the risk.’ It further appears: ‘* * * a person, if he is fully informed, may assume a risk even though the dangerous condition is caused by the negligence of others.’

Defendant had put itself in a position to justify its request that instructions be given relating to assumption of risk. In its answer it had included this affirmative defense:

‘There are certain risks incident to using and attempting to repair machinery without observing proper safety measures, which risks are obvious, and this defendant is informed and believes, and on the basis of such information and belief alleges, that plaintiff used the machinery referred to in the Complaint without observing proper safety measures, being fully aware of said risks, and thereby voluntarily assumed said risks, including the risk that he would be injured while using and attempting to repair said machinery.’

This was a sufficient pleading of the defense. (Ching Yee v. Dy Foon (1956) 143 Cal.App.2d 129, 135, 136, 299 P.2d 668.)

Defendant had reinforced its position by including in its separate statement of legal and factual contentions as to issues remaining in dispute, filed by it in the pretrial proceedings:

‘Assumption of risk: Knowing the dangers involved as set forth above under contributory negligence, the plaintiff nevertheless voluntarily assumed and chose the position to work in at the time of his accident.’

The dangers ‘set forth above’ were ‘reaching over moving parts which were running in a direction that could pull his hand into the machinery.’ We shall see that this is what plaintiff actually did.

Not only had the defendant pleaded assumption of risk and noted it as a surviving contention, but it requested in vain that the jury be given these instructions:

‘We have a legal principle commonly referred to by the term ‘assumption of risk.’ It now will be explained to you:

‘A person is said to assume a risk when he freely, voluntarily and knowingly manifests his assent to dangerous conduct or to the creation or maintenance of a dangerous condition, and voluntarily exposes himself to that danger, or when he knows that a danger exists in either the conduct or condition of another, or in the condition, use or operation of property, and voluntarily places himself, or remains, within the area of danger.

‘A person who thus assumed a risk is not entitled to recover for damages which resulted from the dangerous condition or conduct to which he thus exposed himself.'1

‘It should be noted that to bar recovery, assumption of risk must be voluntary. To be voluntary, these two factors must be present: First, the person in question must have actual knowledge of the danger. Second, he must have freedom of choice. This freedom of choice must come from circumstances that provide him a reasonable opportunity, without violating any legal or moral duty, to safely refuse to expose himself to the danger in question.'²

These instructions were almost word for word those given in Ching Yee v. Dy Foon, supra, 143 Cal.App.2d at p. 138, 299 P.2d 668, and there characterized as ‘correct instructions.’ Up to this point, then, it is seen that the jury cleared the plaintiff of the charge that he was guilty of negligence in the things that he was shown to have done or left undone and there was the pleaded defense of assumption of risk, specified as such in the pretrial proceedings. We make use of these words taken from Chapman v. Reliance Equipment Co. (1963) 214 Cal.App.2d 221, 224, 29 Cal.Rptr. 500, 502: ‘Since the issue of assumption of risk was raised by the answer and the pretrial order, defendant was entitled to have the jury instructed on this theory if there was any evidence upon which to base it.’

We find ample evidence upon which to base the instructions requested. From one source or another it could be concluded the plaintiff had been a machinist intermittently for some 30 years, having worked on drill presses, radial drills, service grinders, lathes, shapers, planers, and milling machines. He considers himself a qualified mechanic. The defendant had a paper cutting machine that it wished corrected in two particulars. Plaintiff was sent over to the defendant's plant by the supervisor of the company that employed him with directions as to what was to be done. At the defendant's plant he was met by its ‘leadman’ and a young lady in the office. By the former he was offered such assistance as he needed. The job to be done was, he said, strictly a one-man job and he undertook it.

During the first part of the two to three hours that he worked, while he was correcting the ‘chattering’ fault, the machinery was not in operation. Then he undertook to smooth the rollers that fed the paper, that was to be cut, into the cutters. This operation consisted of holding emery paper against the bottom roller while it was powered to revolve. Rollers immediately behind the feeding roller and parallel with it had ‘grabs' on them, to pull the cut paper away. The emery paper that plaintiff was holding was grabbed and his hand jerked with it into the pull of the roller. He tried to pull away but could not, and gradually his arm, up to his elbow, was drawn in—his muscles ‘exploding’ through the skin. He called for help but the only one to hear him was the girl in the office. She, following his directions, turned off the power that was turning the rolls: called for other assistance; the machine was taken apart enough for plaintiff to get away.

Two of the omissions that the plaintiff contends constituted negligence on defendant's part were the absence of some person that could respond to aid him in such an emergency as arose, and the lack of a means that he could use to turn off the power. However, the jury could have concluded that when he stopped all operations to answer the telephone, along about 4 p. m., he was fully aware that the work force had gone home and that nobody, other than the girl in the office, was around. Also, there was a turnoff button under the left end of the table on which he had been lying when at his task of smoothing down the rollers. This button he had just used to stop the machine for the phone call. However, on his return to resume his emery paper work, he had taken a position on the opposite side of the table from the button for his own reasons, and so he could not reach it when he needed to. There is no doubt that the jury could have concluded that, insofar as the location of the button and the absence of a colaborer were concerned, the plaintiff voluntarily resumed his task with full knowledge of the situation.

A further requisite for the application of the doctrine of assumption of risk is that the person in question shall be aware of the danger involved. It is succinctly stated in Prescott v. Ralphs Grocery Co., supra, 42 Cal.2d at p. 162, 265 P.2d 904, 906: ‘* * * the elements of the defense of assumption of risk are a person's knowledge and appreciation of the danger involved and his voluntary acceptance of the risk * * * the cases in which this defense is applied usually involve dangerous conditions created by the negligence of another.’ We do not understand the rule to be that the threat of injury has to be so great that it was probable. It suffices if it is known to be within the range of possibilities; neither sure nor necessarily apt to happen; but one that will happen if the conditions are ripe for it. Plaintiff, as an experienced mechanic with actual knowledge of the machine on which he was working, could very well have been said to be aware of the danger lurking in the turning rollers to one who was pressing emery paper against one of them.

It is, of course, no answer to our observations to say: the jury might not have reached any of the conclusions suggested. To be sure they might not, but they had the evidence before them and they might have found the defense good, had their attention been directed to it.

The judgment appealed from is reversed.

FOOTNOTES

FOOTNOTE.  FN* Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.

1.  BAJI No. 207.

2.  BAJI No. 207B.

BISHOP, Justice.*

FILES, P. J., and JEFFERSON, J., concur.