Hutton v. Pagni

VAN DYKE, P. J.

This is an appeal from an order of the trial court granting plaintiff’s motion for a new trial after a defense verdict. There is also presented a cross-appeal taken by plaintiff from the judgment entered upon the defense verdict.

The stated ground upon which the new trial was granted was insufficiency of the evidence to support the verdict of the jury. As stated in

Estate of Green, 25

Cal.2d 535, 542 [154 P.2d 692]:

[16]

“ ‘. .

. The rules of law applicable to an appeal from such an order are well settled. A trial court in considering a motion for new trial is not bound by the rule of conflicting evidence. [Citing cases.] When the motion is granted, as here, for insufficiency of the evidence, it is only in rare cases showing' abuse of discretion that an appellate court will interfere because the trial judge must weigh all the evidence and determine the just conclusion to be drawn therefrom. [Citing cases.] It cannot be held that a trial court has abused its discretion where there is a conflict in the evidence or where there is any evidence which would support a judgment in favor of the moving party. ’

(Hames

v.

Rust,

14 Cal.2d 119, 123-124 [92 P.2d 1010].)”

Respondent, Ralph Hutton, suffered a loss of vision in his left eye as the result of an accident when a fragment of metal penetrated his eye while he was assisting appellant Borland in aligning punching dies on a 100-ton hydraulic press owned by Borland’s employer, Pagni. Borland, at the time, was in charge of the punching operations and of the press and was acting in the scope of his employment by Pagni. Hutton was a welder employed by Fontaine and Bean, a sheet metal firm in Sacramento. Although an experienced welder, he had never operated a hydraulic punch or brake press and had had no experience in setting or aligning punching dies in such presses. Hutton’s employers fabricated and supplied sinks made of 14-gauge stainless steel. To shear, to brake and to punch the holes in the steel sheets they sent the sheets to Pagni who had a press that would do that work. Hutton was sent to Pagni to transport 12 or 14 sheets of steel to Pagni’s works, there to be sheared, braked and punched. Although he had no specific instructions to assist in the work, he also had no orders not to do so. When he arrived at the Pagni plant with the sheets he found that by assisting in the work to be done he would be able to return to his employers with sufficient sheets that had been sheared, braked and punched to enable him to continue his work of completing sinks which were needed by his employer. Borland was assigned by his foreman to do the press work. He and Hutton marked the sheets for shearing and punching, using a pattern supplied for that purpose. They then sheared them, which readied them for punching. Hutton and Borland then went over to the press to set it up for punching. Borland selected the punching dies to be used. The dies consisted of two parts, the punch, commonly referred to as the male die which is set