Garcia v. San Gabriel Ready Mixt

California Court of Appeal Nov 27, 1957 No. Civ. 22393Published

Before: Drapeau

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Holding. The court held that the trial judge erred in granting a directed verdict on the second cause of action because there was sufficient evidence regarding the negligent construction of the chute to present a question of fact for the jury. Furthermore, the court found that restricting counsel from arguing the second cause of action denied the plaintiff a fair trial.

Issues

Whether the trial court erred in granting a directed verdict on the second cause of action regarding negligent fabrication and maintenance of the chute.
Whether the trial court abused its discretion by prohibiting counsel from arguing the second cause of action to the jury.

Disposition. reversed

Quotations verified verbatim against the opinion

“The facts as narrated are amply sufficient to require the issues in the second cause of action to be submitted to a jury.”

“The judgment must be reversed for two reasons.”

“Therefore plaintiff was denied the right of argument as to the alleged negligence which was part of the second cause of action, and which was also part of the first cause of action.”

DRAPEAU, J.

Plaintiff, MarianoGarcia, was laying concrete foundations under an old house that had been jacked up a few feet.

Defendant, Albert C. Strinz, owned a truck that had been leased, together with himself as driver, to defendant San Gabriel Beady Mixt, a corporation.

Upon the truck was a large barrel-shaped tank, to hold concrete mix for delivery to customers of the corporation. The tank turned round and round, to keep the cement, water, and other ingredients of the mix, in motion.

Mr. Strinz brought his truck to the house where Mr. Garcia was working. Mr. Garcia showed Mr. Strinz where he wanted some of the cement poured, on the west side of the building. The pouring was done by means of a chute attached to the rear end of the truck. Mr. Garcia held the chute and Mr. Strinz operated the truck.

After this pouring was finished, Mr. Strinz took his truck into the street, and backed it into a driveway on the east side of the building. When he got near to the place where this cement was to be poured, he got out of the cab of his truck and looked around, and told Mr. Garcia to hold the chute until it reached the place where the cement was to go. Neither

[570]

man understood much that was said by the other, for Mr. Garcia didn't speak much English.

The chute was of metal, and was designed to convey cement mix from the tank to foundation forms. The chute was in two parts, one fastened to the rear of the truck; the other was an extension that slipped inside the first, along a flange that held it so that it would go forward or backward. One of the witnesses described it as telescoping.

The extension piece was not of a standard type or design used by original

equipment

manufacturers. At the time Mr. Strinz purchased the truck, the extension piece was broken and was in the corporation’s yard. Mr. Strinz put a new “ear” or flange on it, and a handle, fitted it as it was used by Mr. Garcia, and fastened it to his truck. The dangerous feature of the chute was that the extension piece would naturally come back against one’s thumb if he were holding the handle and if the truck backed into an immovable object.

Garcia v. San Gabriel Ready Mixt

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DRAPEAU, J.

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