Wilson v. Ray

MoCOMB, J.

From a judgment and order of nonsuit and dismissal in favor of defendants in an action to recover damages for personal injuries, plaintiff appeals.

Facts:

On or about August 22, 1948, plaintiff and his wife were guests of a Mr. and Mrs. Muti, lessees of an apartment owned by defendants. While plaintiff was reading a newspaper in a room adjacent to the kitchen of the apartment he overheard a conversation in the kitchen to the effect that .the fire in the oven had gone out, and that his wife had turned off the gas cock. Plaintiff immediately walked into the kitchen, opened the oven door, struck a match, inserted the lighted match into the oven, whereupon an explosion occurred causing plaintiff personal injuries. The stove was an old gas range and at the time of the accident had a vent for the flue approximately 3% by 3 inches in which was wadded a greasy brown paper preventing fumes from escaping through it.

Defendant Mrs. Ray told plaintiff she had had trouble with the stove in her own apartment and had moved it into the apartment which was subsequently leased to Mr. and Mrs. Muti; that it was a gas stove, and that she had investigated and found out that it would burn butane gas if the holes were enlarged in the burners. However she had not had the holes in the burners enlarged, nor had she cleaned the oven burner.

On September 14, 1949, defendants’ motion for a nonsuit was granted and on September 20, 1949, a minute order was entered by the clerk reading as follows: ‘ ‘ Trial is resumed from September 13, 1949 with all parties and counsel present as before . . . Plaintiff rests. Motion for nonsuit by attorney for defendant Santa Catalina Company is by the court granted. Motion for nonsuit by attorney for defendants Thomas A. Ray and Mrs. B. Ray, husband and wife, is by the court granted. Jury is discharged. Cause is ordered off calendar. ’ ’

On the same date a final written document entitled “judgment of Nonsuit and Dismissal” was signed by the trial judge and entered. Within 10 days after the entry of the minute order granting defendants’ motion for a nonsuit, plaintiff

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filed a notice of intention to move for a new trial and on November 22, 1949, a minute order denying plaintiff’s motion for a new trial was made and entered. On December 1, 1949, plaintiff filed a notice of appeal wherein he stated that he thereby “appeals to the District Court of Appeals of the State of California from the judgment made and entered in the above entitled court on September 20, 1949, in favor of said defendants and against said plaintiff, and from the whole of said judgment, motion for new trial having been made by said plaintiff and denied on November 21, 1949.”