Gavel v. Jamison

McCOMB, J. From a judgment in favor of defendants predicated upon the granting of their motion for nonsuit in an action to recover damages for wrongful death, plaintiff appeals.

[636]Viewing the evidence, as we must on the granting of a motion for nonsuit, in the light most favorable to plaintiff, we accept plaintiff's statement of the facts which is as follows:

“The plaintiff, Sadie Gavel, is the surviving widow and sole heir of the deceased Arthur Gavel who was killed on June 30, 1947, while engaged in the course of his employment as carpenter foreman for the Wm. C. Crowell Co. Plaintiff had married the deceased in 1938.

“The Wm. C. Crowell Co. . . . had the prime contract with the California Hardware Co. for the construction of a multiple story warehouse located at 121 Eose Street, Los Angeles, California.

“Crowell entered into a written subcontract with Jamison for the doing of certain work stated in the subcontract which fell generally into the classifications of excavation, concrete cutting, back fill and removal of debris.

“Hesse was the owner of the crane which fell when an excavation collapsed, killing the deceased Arthur Gavel. Harmon Willingham was the ‘operator’ of the crane and Eandall Griffin was the ‘oiler’ or ‘swamper’ of the crane. Willing-ham and Griffin were on the payroll of Hesse. . . .

“At the time of the accident all of the excavations had been completed except one ... or possibly two. The crane was being maneuvered near the excavation in which it fell in order to get it into position to complete the last excavation and then to back off the job into the street. Because of the numerous excavations that had been completed and the other construction work in process, the crane was being ‘spotted’ at the only possible location preliminary to completing the final excavation.

“The excavation in which the crane fell had been freshly dug, having been completed only 2 hours before the accident. The crane, weighing 25 tons with a forty-foot boom and ten wheels with truck tires, was moving back and forth within less than 2 feet of the edge of the excavation.

“The soil was sandy loam ‘pretty’ damp and excavations for some of the footings were required to go a greater depth than specified because the soil did not meet ‘load bearing requirements. ’