Hurd v. Standard Gas Engine Co.

STURTEVANT, J. From a judgment awarding him damages for personal injuries the plaintiff has appealed.

For many years the Standard Gas Engine Company, a corporation, hereinafter called the Gas Company, has been engaged in manufacturing internal combustion engines. It has a manufacturing plant on Dennison and King Streets, East Oakland. Shortly prior to the tenth day of September, 1932, the Standard Diesel Engine Company was incorporated. On the date last mentioned the Standard Gas Engine Company, as lessor, entered into a lease with the Standard Diesel Engine Company, under the terms of which the lessor let to the lessee the right to jointly use and occupy its manufacturing plant. The rental reserved was the sum of $125 per month. On the same day the Standard Gas Engine Company and the Standard Diesel Engine Company entered into a written contract by the terms of which the former subscribed for 67 shares of the common stock of the latter and agreed to pay therefor $1340 at the rate of $223.33 per month during the period of six months. It was further agreed that the second party would use and employ certain labor to be furnished by the first party and would pay therefor the price paid by the first party. On the same date the Standard Gas Engine Company and the Standard Diesel Engine Company entered into a third agreement in writing whereby the first party agreed to buy from the second party 33 shares of its common capital stock of no par value and agreed to pay therefor by transferring to the second party certain physical assets consisting of Diesel engines, castings, patterns, blue prints, etc., used in connection with the manufacture thereof. Thereafter the parties proceeded to operate under said agreements. Charles A. Winslow was the manager of each corporation. [461]The record presents no question of fraud on the part of either of the corporations, or any of the officers thereof.

Prior to the twenty-seventh day of January, 1933, the Diesel engine company had been engaged in the manufacture of multicylinder Diesel engines in the plant above mentioned. A rectangular room 17 feet by 27 feet was selected for the purpose and was known as the test room. Within it was a test stand for testing motors. It consisted of a motor bed to which was attached a dynamometer used to apply a load to the engine or to test its horsepower. On January 27, 1933, a four-cylinder monovalve Diesel engine was mounted on the stand and attached to the dynamometer. A pulley wheel was mounted on the shaft protruding from the side of the dynamometer away from the engine. It had only one use—to start the engine, at which time a leather belt connected it to an electric motor. When the engine started, the belt would be pushed off and allowed to coil up at one side of the test-room. After the engine started the pulley wheel revolved with the speed of the engine. The engine had been in place and had been operating day and night for a period of three weeks immediately preceding January 27, 1933. For some time prior to the date last mentioned Professor Carl A. Vogt, of the University of California, was conducting a post graduate course in mechanical engineering. He had a class in Diesel engines, the members consisting of a group of young naval officers. In the month of December, 1932, at a meeting of the Society of Automotive Engineers, a paper was read regarding the monovalve Diesel engine which had come to be known as the Winslow type. The students of Professor Vogt were not present at the reading but the paper was discussed in his classes. At times the classes visited various factories. One of the students asked Professor Vogt whether it would be possible to visit the Standard Gas Engine Company plant to see the Winslow Diesel engine. Professor Vogt thereupon telephoned to Mr. Winslow asking for permission and the request was granted. At 2 o’clock on January 27, 1933, Professor Vogt, together with the plaintiff and other members of the class, went to the plant. After the class arrived the Diesel engine was demonstrated to them. During such demonstration the pulley wheel, hereinabove mentioned, exploded, injuring several, including this plaintiff. For the injuries