Dawson v. Tulare Union High School

FINCH, P. J.

The plaintiff brought this action to recover damages caused by an upright piano falling upon and crushing one of her ankles while she was engaged in school

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work- as a student in the Tulare Union High School. The trial court granted defendants’ motion for a nonsuit, made on the ground set forth in “section 581 of the Code of Civil Procedure, subsection 5, which reads to the effect that ‘An action may be dismissed, or a judgment of nonsuit entered, in the following cases: ... 5. By the court upon motion of the defendant, when upon the trial the plaintiff fails to prove a sufficient case for the jury. ’ ” No other ground was specified in the motion. The plaintiff has appealed from the judgment. “It is . . . settled law that a motion for a nonsuit must point the attention of the court and counsel to the precise grounds upon which it is made. ... It is not sufficient to state generally that there is no evidence before the court justifying it in granting any relief to the plaintiff, or that plaintiff has failed to prove a sufficient case. The motion should show wherein the plaintiff failed to prove its case or why he is not entitled to recover.” (9 Cal. Jur. 548;

Masero

v.

Bessolo, 87

Cal. App. 262 [262 Pac. 61];

Henley

v.

Bursell,

61 Cal. App. 511 [215 Pac. 114].)

There is no dispute as to the injuries received by the plaintiff or the serious nature thereof. Under the settled rules governing the determination of a motion for nonsuit, only, the evidence most favorable to the plaintiff need be considered. There is evidence in the record from which the facts herein stated may be inferred. The piano in question was the property of the defendant district. It was frequently moved from one room to another. To facilitate the moving thereof, it was kept upon what the witnesses referred to as a dolly. This dolly consisted of a skeleton structure, rectangular in form, of the same size as the bottom of the piano, and made of two by four inch lumber. Near either end, between the side pieces of the framework, was a wooden roller about four inches in diameter and twelve in length, through which there was a metal rod forming the axis of the roller and supporting the frame. The. piano was not fastened to the dolly but merely rested upon it, with no stays to keep it in place. The bottom of the piano, when on the dolly, was five or six inches above the floor. It was “awfully wobbly.” “It seemed to be on a very unsteady platform. Oh, just like the wheels in it were loose.” “It was shaky.” “When the girls would play the piano, it