Smith v. Kile

California Court of Appeal Dec 28, 1956 No. Civ. 21636Published

Before: Wood (Parker)

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Holding. The court held that the trial court did not err in its jury instructions regarding the interpretation of a municipal ordinance, the definition of negligence per se, or the scope of issues presented to the jury.

Issues

Whether the trial court erred in defining 'install' and 'use' regarding a municipal ordinance prohibiting open flame heaters.
Whether the trial court erred in its instructions regarding negligence per se and the presumption of negligence.
Whether the trial court erred in refusing to give a specific instruction regarding contributory negligence and the violation of the ordinance.
Whether the trial court erred in its instruction stating the issues to be determined by the jury.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It was not error to give the instruction.”

“A party cannot complain of an instruction given at his own request or of an error in an instruction given at the instance of his adversary when he requests a substantially similar one.”

“The judgment is affirmed.”

WOOD (Parker), J.

Action for damages for wrongful death caused by an unvented gas heater. Plaintiff is decedent’s mother. Defendants are the owners of the building in Lynwood where the death occurred. Judgment upon a verdict was for plaintiff. Defendants appeal from the judgment.

Appellants contend that the court erred in instructing the jury.

About January 1, 1954, defendants rented a room to Robert Lee Smith, 19 years of age. An open flame gas heater, which was in the room, had a cracked mantle, was unvented, and was attached to a gas outlet by a flexible rubber hose. Defendants had obtained and installed the heater in December, 1953. They did not obtain a permit from the city of Lynwood to install the heater, and did not request an inspection of the installation. On Friday, April 2, 1954, Mr. Smith left his room about 6 o’clock in the evening, and returned sometime after 2:30 o ’clock Saturday morning. It was a cold morning. About 3:30 o ’clock Saturday afternoon two friends of Smith went to the door of his room. There was no response to a knock on the door. The door and the windows of the room were locked. One of the friends broke a window, reached inside and unlocked the door, and entered the room. Mr. Smith was lying on his bed and was fully clothed. There was no flame in the heater. The gas was turned on, the room was hot and filled with gas. A doctor, who arrived shortly thereafter, determined that Mr. Smith was dead. The cause of death was carbon monoxide poisoning due to burning illuminating gas.

There was conflicting evidence as to whether or not the heater was located in its usual place in the room at the time the body was found.

[316]

Mr. Chaney, called as a witness by plaintiff, testified that he was a chemical engineer; he had examined the heater; it had a carbon monoxide output in excess of 1 per cent; the standard for a heater of that type was .02 per cent; the heater when operated at full capacity in a room such as the one involved here would produce enough carbon monoxide gas to be invariably fatal in less than an hour; if one window were open in the room, the heater would produce enough carbon monoxide gas to be dangerous to human life; the heater had a vent opening which could be connected to a chimney or vent; if the vent opening had been connected to a pipe leading to the open air, approximately 75 per cent of the gas would have been carried off.'

Smith v. Kile

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