Perry v. Fowler

DORAN, J. “This is an action for the wrongful death of John Hubert Perry and is brought by his widow and two minor children. The complaint alleges that on August 24, 1945, in the County of Los Angeles, California, the deceased, while employed as a rigger, met his death as the proximate result of the negligent operation of a crane by the defendants. The answer denies any negligence upon the part of defendants or any of them and affirmatively pleads contributory negligence as to the deceased.”

The jury returned a verdict in favor of all defendants. “A motion for new trial was made upon several grounds, including insufficiency of the evidence and errors qf law, and was granted upon the two grounds last named. This appeal is taken by all the defendants from the order granting the new trial. ’ ’

It was stipulated that death “proximately resulted from the accident sued upon in the complaint.”

The facts briefly are as follows: A “truck-crane” was being used to remove 90-foot poles which had supported camouflage at the plant of the Douglas Aircraft Company. The deceased was employed as a rigger. The “truck-crane,” so called, consisted of a crane mounted upon a truck. 1 ‘ The crane was made up of a cab, boom and jib and the motor necessary to operate the boom and jib. The crane operator (Pledger) was stationed at the rear of the cab, which was open. The boom was sixty feet long and the jib attached to the end of it, fifteen feet. ’ ’

“Just prior to the accident the crane was being backed into position for attaching the jib to a ninety-foot pole so [637]that the pole could be lowered to the ground. The function of the rigger was to attach the jib to the pole and to accomplish this the deceased had ascended the pole to a ‘spider’ or cross-arm about sixty-five feet from the ground where he was waiting for the crane to be moved into place. Before the jib could be attached to the pole, a part of the boom came into contact with a guy-wire leading from the top of the pole to its anchorage in the ground, the wire parted at a place where it was spliced and the pole fell, killing Perry.”

The sole issue on appeal is whether the order appealed from was an abuse of discretion. In that regard, appellants argue, “It is our contention that the question of negligence and contributory negligence were so patently questions of fact in this case to be decided by the jury that a granting of a new trial upon insufficiency of the evidence was an arbitrary exercise of discretion by the learned trial court.”