John Furukawa v. Yoshio Ogawa, 236 F.2d 272

John Furukawa v. Yoshio Ogawa

236 F.2d 272

9th Cir.

1956

Check Treatment

DENMAN, Chief Judge.

This is аn appeal from a judgment of the district court, .sitting without a jury in a diversity suit, 1 awarding appellee $3,324.00 for injuriеs to appellee. The court held appellant liable for knowingly maintaining in California a dangerous working condition unknown to appellee, causing the latter to be injured while working there undеr an agreement with appellant. Appellant contends (a) that he was not negligent and (b) that, if negligent, appellee was contributorily negligent.

The facts found by the district court are that appellant operated a dump yard. Appellee, plaintiff below, a gardener, paid a monthly fee for the privilege of depositing refuse therein. In the dump yard there was a pit in which apрellant’s truck had been driven, and surrounding the pit was a concrete retaining wall which extended about one foot above the adjacent ground. The top of the sides of the truck in the pit extendеd about two feet above the pit’s retaining wall, and the distance between the wall ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and the truck wаs roughly eighteen inches. The court further found that when appellee was injured, appellant nеgligently maintained the top of the retaining wall with a covering of “dirt, grass, leaves, trash, refuse and debris.” Priоr to this time the truck had been involved in an accident with the result that a jagged piece of metаl, between two and three inches wide and between four and five inches long had been torn from the side of the truck so that it pointed upward in the shape of a hook.

On the day of the accident appellee mounted the wall, as was his practice, to deposit a gunny sack of grass in the truсk. He knew of the debris on which he had to stand. As appellee pulled back on the sack in order to empty it into the truck, he slipped on the debris and fell from the wall into the space between it and appellant’s truck. As he fell the upward protruding *274 hook in the side of the truck severely injured appellee’s right leg. The court found that appellant had knowledge of the existence of this hook and that ap-pellee did not, 2 and that an employee of appellant had obsеrved other persons slip from the wall as they were dumping refuse into the truck. These findings ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍are amply suрpoi'ted in the record and are not “clearly erroneous” under Fed. Rules Civ.Proc. rule 52(a), U.S.C. Title 28.

Appellant’s only contention warranting serious consideration is, whether, under the California law, these findings support the judgment. That is whether the appellant, defendant below, maintained his burden of proоf 3 that the ap-pellee contributed to the negligence of the appellant by working on tоp of the retaining wall knowing he might slip on the grass, dirt and refuse he saw there and fall into the spacе between the wall and the truck, but without knowledge that appellant was also maintaining an upturned hоok on which he was likely to be impaled.

We think the district court did not err in holding that under the California law аppellee was not contributorily ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍negligent in his impalement on the hook. In the recent easе of Schance v. H. O. Adams Tile Co., 1955, 131 Cal.App. 2d 549, at page 554, 280 P.2d 851, at page 854, that court repeats its holding in Ridge v. Boulder Creek etc., School District, 1943, 60 Cal.App.2d 453, 460, 140 P.2d 990:

“<->:• * * Knowledge that danger exists is not knowledge of the amount of danger necessary tо charge a person with negligence in assuming the risk caused by such danger. The doing of an act with aрpreciation of the amount of danger in addition to mere appreciation of the danger is necessary in order to say as a matter of law that a person is negligent.’ ”

In so holding the law as to contributory negligence, the court of appeals is supported by the dictum of the Califоrnia Supreme Court in a ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍case where the defense was on the different issue of assumption of risk by the plaintiff, De Graf v. Anglo California National Bank, 1939, 14 Cal.2d 87, 92 P.2d 899. There in upholding the jury’s decision that the defense of assumption of risk was not maintained, the supreme court stated also at page 100 of 14 Cal. 2d, at page 905 of 92 P.2d, “ ‘ “The faсt that one voluntarily assumes a certain degree of risk is not conclusive of negligence.” ’ ” Cf. Hayes v. Richfield Oil Co., 1952, 38 Cal.2d 375, 385, 240 P.2d 580, holding the question of contributory negligence is one of fact for the jury. Here, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the jury being waived, the question was equally one of fact for the court. 4

The judgment is affirmed.

Notes

. Appellee is a citizen of Jaрan and appellant is a citizen of the United States and a resident of California.

. “VIII. * * * That there was a reasonably foreseeable hazard of falling from the top of said cement retaining wаll into the pit, or into the truck, or between the pit and the truck. That it was reasonably foreseeable that the results of such a fall would be minor cuts, skin burns or bruises. That the hazard of being impaled on a metal hook projecting from the side of the truck in the pit was not known to plaintiff and could not have bеen reasonably foreseeable by plaintiff; but that said hazard was known to said defendant and was reasonably foreseeable by said defendant.”

. Smith v. Occidental, etc. Steamship Co., 1893, 99 Cal. 462, 469, 34 P. 84; Zentz v. Coca Cola Co., 39 Cal.App.2d 436, 444, 247 P.2d 344.

. Cf. also our opinion in Sullivan v. Shell Oil Co., 9 Cir., 234 F.2d 733.