Meyer v. Tobin

LANGDON, J.

This is an action for personal injuries. Defendant owned a concrete mixer which was being operated by his employees in certain construction work. The engine broke down and plaintiff was sent by his employer, O. F. Werner, to make necessary repairs. Plaintiff worked on the engine for several hours, and when his repairs were completed, defendant’s employees put the mixer in motion to test it, and plaintiff followed closely behind to see how the engine was working. Part of the machinery consists of a container called a “skip”, in which the materials to be mixed are placed and raised to the body of the mixer. The skip was raised and lowered several times during the course of the repairs, but was kept in a raised position while being moved. In the course of the progress of the mixer along the street the skip fell suddenly, striking and injuring plaintiff. He brought this action alleging negligence in general terms, relying upon the doctrine of

res ipsa loquitur.

Defendant’s motion for a nonsuit was denied, and the jury brought in a verdict in favor. of plaintiff, from which order and judgment defendant appeals.

The record shows that plaintiff acted with due care and was justified in following the machine to examine the effect of his repair work. The only important question is whether the doctrine of

res ipsa loquitur

is applicable under the facts. We think it is. Although plaintiff had asked to have the machine started, it was under the control of the employees of defendant, and was operated by them. The skip was usually secured by a brake, or a “dog” or pawl on a ratchet wheel," and its fall was an occurrence which would not ordinarily take place. Recent decisions of this court have restated the principles and reviewed the authorities

[137]

on this subject, and they fully support our conclusion herein. (See

Michener

v.

Hutton,

203 Cal. 604 [59 A. L. R. 480, 265 Pac. 238];