Snow v. Harris (1919) · DecisionDepot

Snow v. Harris

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal May 1, 1919 No. Civ. No. 2660.Published

Before: Kerrigan

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Holding. The court held that a nonsuit was proper because the plaintiff failed to provide any evidence of negligence on the part of the defendant, and the cause of the accident remained speculative.

Issues

Whether the defendant was liable for personal injuries sustained by the plaintiff during the repair of machinery.
Whether the trial court erred in granting a nonsuit due to a lack of evidence regarding the defendant's negligence.
Whether the trial court properly rejected expert testimony based on conjecture rather than established facts.

Disposition. affirmed

Quotations verified verbatim against the opinion

“in the absence of proof of negligence, defendant cannot be held liable for the injuries complained of, and we are of the opinion that the record fails to show any negligence whatever on the part of the defendant.”

“No presumption of negligence exists in favor of plaintiff by reason of the mere happening of the accident”

“It is not sufficient for an employee to show that the employer may have been negligent. The evidence must show the fact that he was.”

Synopsis

1. Presumption of negligence from accident resulting in personal injury, note, 113 Am, St. Bep. 987. '

. The facts are stated in the opinion of the court.

KERRIGAN, J.

This is an appeal from a judgment of nonsuit in an action for personal injuries.

The case has already been before the supreme court, where it was held that the plaintiff was a casual employee, and therefore not entitled to compensation under the Workmen’s Compensation Act

(Maryland Casualty Co.

Pillsbury,

172 Cal. 748, [158 Pac. 1031]). Plaintiff thus being relegated to an action for damages, he seeks judgment against defendant, by whom he was employed at the time of the injury complained of, alleging that defendant was negligent in two particulars: First, in that he supplied an improper helper, whose negligence contributed to the injury; second, that he failed to supply proper tools with which to do the work. To avoid the common-law defenses on the part of the defendant of assumption of risk and act of fellow-servant, plaintiff contends that the provisions of section 1 of the Roseberry Act (Stats. 1911, p. 796), abolishing these defenses and modifying the defense of contributory negligencé were not repealed by the Boynton Act (Stats. 1913, p. 279), and that they govern this action.

[1]

Whether this be time or not, a discussion of the question becomes unnecessary, for, in the absence of proof of negligence, defendant cannot be held liable for the injuries complained of, and we are of the opinion that the record fails to show any negligence whatever on the part of the defendant. The trial court in granting a nonsuit so declared, and from a careful reading of the record we are of like opinion.

From the evidence, which is without conflict, it appears that the defendant was a farmer, and among other machinery which he used in cultivating his land was a caterpillar tractor. Plaintiff was employed by defendant to repair this machine, and while in the act of babbitting one of its bearings an explosion occurred and plaintiff lost the sight of both his eyes. Plaintiff was an experienced machinist, and had agreed to do the work at a stipulated price per day, using his own tools together with those owned by defendant. On the day of the accident plaintiff had removed the boxing of

[36]

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the rear axle of the machine, which was separated into two halves. After 'babbitting the lower half he cleaned the upper part with tools and heat, placed the axle in position, and then made a mold of cardboard and clay to hold the molten metal, and caused the box to be heated by a flare torch operated by his helper. He then, with the assistance of this helper, poured the babbitt metal into a pour-hole and returned the pans which had contained the alloy to the side of the forge close by. After waiting for a time sufficient in his opinion to allow the metal to solidify he removed a portion'of the dam he had constructed to hold the metal and looked into the pour-hole to inspect the result of his work, when of a sudden an explosion occurred, which threw the molten metal upward, causing the injury complained of. At the time of the accident, plaintiff was alone at the bearing, defendant not having been present at any time during the day; in fact, defendant had nothing to do with the work either in assisting or in the giving of • instructions as to the manner in which it should be done, and nowhere in the evidence is there anything which shows that the tools used 'by the plaintiff contributed in any degree to the accident. Plaintiff had complete charge of the work, was experienced in babbiting bearings, and he testified that he did not know of anything that the helper did or failed to do that in any way contributed to his injury. The evidence further discloses the fact that babbitt metal explodes when brought in contact with moisture, and it is conceded that moisture in some form, either direct or indirect, was the cause of the accident. There is, however, no evidence showing how the moisture was produced. Plaintiff’s theory of the accident is that the helper, while holding the blow-torch on the bearing for the purpose of heating it, negligently knocked a portion of the damp clay forming the dam into the hole.' There is no evidence, however, to support this contention. On the other hand, defendant suggests causes for the presence of the moisture, among which is that the plaintiff himself might have knocked the clay into the hole, or that he might have left moist clay in the box before the pouring of the molten metal commenced. Varied as are these different theories of the parties, there is no evidence as to the real cause of the presence of moisture which produced the explosion, nor is there any evidence that the accident occurred through any negligent conduct of the defendant.

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Synopsis

KERRIGAN, J.

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