Palmer v. Crafts

WHITE, J.,

pro tem.

This is an appeal by the defendant from a judgment in favor of plaintiff made and entered on the verdict of a jury after trial, in which proceeding plaintiff recovered damages for injuries sustained by him through the alleged negligence of defendant. The facts, so far as germane to this appeal, are disclosed by the record to be that in 1934 and prior thereto appellant was engaged in the business of operating carnival shows, and in pursuance thereof had arranged for his show to appear at the Los Angeles County fair in Pomona, opening on September 15, 1934. Prior to the last-named date, respondent arranged with appellant to conduct a side-show to appellant’s attractions at the county fair. The terms of the agreement provided that appellant and respondent were to receive the gross intake of the side-show share and share alike. Appellant was to furnish the electricity, space and license, while respondent agreed to furnish a tent, ticket box, “bally platform”, banners, and everything necessary to set up the show. It appears that respondent described to appellant’s representative the tent which the former proposed to use, but appellant’s agent informed respondent the tent would not be acceptable, and that respondent would have to obtain a regular concession tent, which he could procure from the firm of Downie Bros. Respondent complied with this suggestion and rented a satisfactory tent,

[372]

with poles and stakes with which to erect the same. The stakes in question were Ford axles. On September 14th the tent was erected by respondent and his helpers on a location designated by appellant’s representative, and thereafter respondent prepared to .set up his “bally platform” and “banner lines”. The evidence indicates that a representative of appellant objected to the supports being used by respondent and insisted upon respondent’s using supports furnished by appellant in order to make for a uniformity of respondent’s “banner line” with others erected along the midway. Supports being obtained out of one of appellant’s trucks, and stakes being also secured from a trailer bearing appellant’s name, respondent and his assistant commenced to set up the “banner line” supports, using the stakes obtained as aforesaid from appellant’s trailer. These stakes also were Ford axles, with a cogwheel attached by means of a “collar” to the top in such a manner as to make a stake head. There is evidence in the record that one Burke, an employee of appellant, instructed respondent and his assistant how to proceed and directed another employee of appellant, named Slayton, to assist. In their work up to this point respondent and his assistant had been using a sledge-hammer belonging to the latter, but on the advice of Slayton, exchanged it for one provided by him. Completing the erection of the “banner line” supports, respondent asked appellant’s representative, Burke, to inspect the same, and was informed by the latter that it was out of line and would have to be changed. The change being accomplished, and meeting with the approval of Burke, the stakes were driven all the way into the ground, the electric wires were strung and the current cut in. Respondent and his party thereupon returned to Los Angeles.