161 P. 4 | Cal. | 1916
Plaintiff by his guardian ad litem, sued defendant to recover damages for injuries which he sustained while in defendant's employ. He charged that he was a waiter in the Bristol Cafe in Los Angeles, owned and operated by defendant. As such waiter he was earning, and was capable of earning, two hundred dollars a month. He was directed by his employer to carry a box containing silver dinner knives to a mercantile establishment known as Hamburger's. The package weighed about 150 pounds. The taking and carrying of this box from the Bristol Cafe to Hamburger's "was outside of the scope of the employment of plaintiff, but that plaintiff did not refuse to obey such order and direction for fear of losing his said position as a waiter in the employ of defendant; that plaintiff was wholly inexperienced in the carrying of heavy weights, and while apprehensive as to his ability to carry safely the said box and its contents, nevertheless obeyed said negligent order given by defendant as above set forth. Plaintiff further alleges that defendant's officers, agents, and servants negligently failed to warn plaintiff of the danger or of any danger in carrying or attempting to carry the said box and its contents." While so carrying this box, by reason of its great weight, plaintiff's left knee gave way under it and was dislocated. As a result of this injury plaintiff "has and will have for the balance of his life a permanently weakened right *627 knee and right knee joint." It has "wholly incapacitated him from engaging in his said business or trade of waiter and from engaging in any trade or business that would require the carrying by him of objects of much weight." Plaintiff was a minor "inexperienced in the carrying of heavy weights," and defendant was negligent in failing to warn him of the danger attendant upon carrying this box, and in failing to furnish him "adequate or any help or assistance in the carrying of said box."
To this complaint a general demurrer was interposed and sustained. Upon behalf of plaintiff it was in his argument stated that the action is based on the negligence or want of ordinary care of the employer, and that notwithstanding that the employee, under the directions of the employer, undertook to carry the box, there is not open to the employer the defense of the assumption of risk, by virtue of section 1 of the Roseberry Act which was then in force. (Stats. 1911, p. 796.) That statute declares in terms that where a recovery is sought "upon the ground of want of ordinary or reasonable care of the employer . . . it shall not be a defense (1) that the employee either expressly or impliedly assumed the risk of the hazard complained of." The trial court in sustaining the demurrer adopted and expressed the view that plaintiff, by his own complaint, put himself without the protection of this act, the court's reasoning here adopted by respondent being that the act applies only to an employee "while engaged in the line of his duty or the course of his employment as such," and that the complaint herein explicitly and repeatedly declares that the task upon which appellant was engaged at the time that he met with injury "was outside of the scope of the employment of plaintiff"; consequently that plaintiff having pleaded that he was employed as a waiter, and having pleaded that he met with injury in the performance of a task outside of that employment, he had debarred himself from the protection of the act. In this, however, the court adopted too narrow a view. Pleadings are no longer to be strictly construed against the pleader, but are to be liberally construed with a view to promoting justice. (Code Civ. Proc., sec. 452.) Manifestly what the pleader meant to declare was that he was set to a task not within the legitimate range of his duties as a waiter, but still a task the performance of which was imposed upon him by *628
his employer under circumstances moving him to the undertaking of it. Nor yet does the Roseberry Act by its language deny the right to invoke its remedial provisions under such a state of facts. When that act limits its protection to an employee who shall sustain injury "while engaged in the line of his duty or the course of his employment as such," it means no more than to deny the right to invoke the act to one who, during the hours of his employment, is engaged in some undertaking which is not a part of his duty under his employment, as where an employee is occupied in affairs of his own, or as where he undertakes to do something not within the course of his duty, and thus becomes a mere volunteer. Such cases are numerous and of varied character. It is sufficient to cite Georgia Pac. Ry., Co. v.Propst,
This, however, but brings us to the fundamental question in the case. The assumption of a risk necessarily presupposes a failure upon the part of the employer to perform some duty which he owes to his employee. In other words, it presupposes, and to be of avail must be based on, the negligence of the employer. For it is not every risk against injury arising from which the employer is liable to his employee. Every human being lives under ceaseless risk, under perpetual peril to life and limb. Accidents of astounding character are ever occurring. It is not against all of these that an employer is an insurer of his employee. Many of them form in no real sense a risk of the employment. To render an employer liable for the resultant injury occasioned by any one of them, he must have failed in some duty to the employee. This is indicated by the language of the Roseberry Act where provisions are applicable to cases charging the employer with "want of ordinary or reasonable care." If he has not so failed the injury falls into one of two categories, for neither class of which is the employer responsible. The injury will have resulted either from the fault of the *629 employee alone, or will have been the result of inevitable casualty arising through no fault of either employer or employee.
The negligence here charged consists of this: That the employer asked this minor to carry a box weighing about 150 pounds, without giving him assistance, or without warning him of the danger of attempting so to do. If this is a sufficient charge of negligence the demurrer was improperly sustained. If there be one thing that every male human being from boyhood up knows himself better than does any one else, it is his physical strength and the limits thereof. Nature herself sets her danger signals whenever that physical strength is being overtaxed. So it is the general rule that "a servant is not entitled to recover damages from his master for injuries received in consequence of straining and overtaxing himself in lifting heavy objects in his master's service, since the servant is the best judge of his own lifting capacity, and the risk of not overtaxing it rests upon him." (4 Thompson's Commentaries on Negligence, p. 860, sec. 4; Ferguson v. Phoenix Cotton Mills,
The judgment and order appealed from are therefore affirmed.
*631Melvin, J., and Lorigan, J., concurred.