Brandwein v. Rodriguez

DORAN, J.

The plaintiff herein, after a trial by jury, was awarded a verdict of $21,000 for the wrongful death of plaintiff’s wife, together with the sum of $7,000 for personal injuries to plaintiff. The complaint alleges that the defendant, as owner of the Keystone Auto Court in Santa Maria, negligently maintained a gas heater therein, and that while Mr. and Mrs. Brandwein occupied a room in said auto court, both the wife and husband became asphyxiated by carbon monoxide from the heater, resulting in the wife’s death and the husband’s injuries. Joel David Brandwein was about 22 years of age; Renee Brandwein, the wife, approximately 21.

Thereafter, on the defendants’ motion, the trial court granted a new trial on two grounds, namely: (1) Irregularity of the proceedings of the court and jury, and (2) Insufficiency of evidence to justify the verdict. The present appeal is from the order granting defendants a new trial.

The record discloses evidence to the effect that the defendant had purchased the Keystone Auto Court on October 24, 1950; that on February 21, 1951, at about 11:30-12 p. m. in the evening, defendant showed Mr. and Mrs. Brandwein to Room 2 in said court, and informed plaintiffs that the gas heater was burning. The defendant testified that when “this room was turned over to Mr. Brandwein and his wife” both the front window and the bathroom window were open; that the next morning when Mr. and Mrs. Brandwein were found unconscious in the room, the windows “were shut tight,” and the heater was still burning.

The gas heater in question was an unvented heater set in

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the wall, and carried the seal: “Complies with the National Safety Requirements, Approved, American Gas Association. ’ ’ Immediately after the accident the heater was inspected by Prank Brandon, general service foreman for Southern Counties Gas Company, who “found the heater to be in good adjustment; the flame height was proper for that type of a heater, and there were no gas leaks. ’ ’

There was testimony by Dr. Missal, who was called in to examine the asphyxiated persons, to the effect that ' ‘ If there is sufficient oxygen in the room, you wouldn’t get carbon monoxide poisoning”; also, that even in the case of a vented heater with an open flame, the flame will consume air in the room. Plaintiff denied doing anything to the heater, and did not open any windows or ascertain if any windows were open before retiring. Brandwein had had no previous experience with heaters of this type; and was unable to detect any odors emanating from the gas heater.