Brooks v. Allis-Chalmers Manufacturing Co.

PEEK, Acting P. J.

This is an appeal by plaintiff from a judgment of nonsuit in an action by her against Insley Manufacturing Corporation for negligent design and manufacture of a crane involved in the death of her husband, Cecil O. Brooks. Plaintiff also appeals from an order granting judgment on the pleadings in favor of Insley relating to a cause of action alleging breach of warranty of fitness of the crane. All of the original defendants have been dismissed except the Insley Manufacturing Corporation.

The appeal from the order granting judgment on the pleadings on the breach of warranty cause of action does not appear to be supported by existing law, which appellant concedes; hence the judgment as to that cause must be affirmed, and we limit this opinion solely to the question of the propriety of the nonsuit.

Thus the only question presented is if by disregarding conflicting evidence, giving plaintiff’s evidence all the value to which it is legally entitled and indulging in every legitimate inference which may be drawn from that evidence, can it be said that there was no substantial evidence to support a verdict in favor of plaintiff?

(Leonard

v.

Watsonville Community Hospital,

47 Cal.2d 509, 514-515 [305 P.2d 36].)

[412]

The evidence, when viewed in light of the stated rule, shows that Brooks was employed as an iron worker by the AnsonSmith Company which was engaged in building a fish hatchery for the state. On the morning of December 10, 1952 (the first day of his employment), at about 10 a. m-, Brooks was “tending the load” of an Insley crane. In this his duty was to keep the load, which was suspended from a cable and held in a sling about two to four feet off the ground, from spinning or swinging. He followed customary procedure by holding on to the load with his hands as he walked along with the moving crane. In fact his foreman testified that had he not held on to the load, he would have been fired. The crane was engaged in moving a 1,500 to 2,000-pound load of steel a distance of 100 to 150 feet. The day was rainy and the ground was soft and depressed in spots. Apparently because of its construction, the crane when in motion would move from side to side; that is, it zig-zagged back and forth rather than proceeding in a straight line, which motion caused the load to swing back and forth. There also was testimony that the uneven ground caused the boom to sway up and down, allowing slack in the cable and thereby causing it to whip-lash on the drum and to vary the tension on the spring which held the safety device. The boom of the crane was at about a 45-degree angle from the cab of the crane. Without warning the boom fell, fatally injuring Brooks.