*1 July A. No. 12725. In Bank. [L. 1934.] JOHN LADDER KALASH, Respondent, LOS ANGELES v.
COMPANY, Appellant; INDEMNITY ASSOCIATED Re (a Intervener Corporation), CORPORATION spondent.
Dave F. Smith Birney and Donnell for Appellant. Haight Trippet, & Horton & Horton, Horton, Joseph K. Guy B. Robinson, Graham, MacDonald', Joseph Price & H. "Weisman, G. C. DeGarmo and Crane, W. M. as Amici Appellant. Curiae on Behalf of Syril Tipton S. for Respondent. Intervener and Styskal Respondent. L. J.
Livingston Myers, & Livingston, ’Melveny, Tuller & Walter K. Tuller and Jаckson W. Chance as Amici Curiae Respondent. Behalf on
PRESTON, J.Plaintiff, painter by trade, acting in the employment, April 8, standing of his 1929, course on forty-foot top rung on the next to apartment screens on the hanging window outside an Angeles Hart his Company, house in Los owned Brothers employer. on engaged, rung While the ladder so standing which he was condi- collapsed, to its defective due tion, distance thereby precipitated and thirty some serious feet to the sidewalk and sustained permanent injuries. Angeles Ladder Com- physical The Los here, manufactured pany, appellant defendant and sold January 1, 1929, and subsequent a date ladder on employer March 1929. to said on charg- defendant, brought against Plaintiff said this action cоnstruction ing negligence in the as manufacturer ladder was charging of the ladder further that the de- instrumentality imminently as to be verdict fectively Plaintiff had constructed or assembled. trial Defendant moved for a new judgment thereon. Both notwithstanding the verdict. judgment and also for appealed from later motions denied and defendant judgment. simple rather tool a ladder is a
We are aware that plaintiff and between contractual that no existed law, as further realize that the common *3 defendant. We strong protection of around general rule, arm throws a persons, third warding of off claims manufacturer, injuries use sustained from personal purchasers, for direct But are by him. we manufactured and sold of articles so acknоwledged sympathy in full at the same time the trend of also with general rule and exceptions to this exceptions include to these judicial which extend decisions The lan heretofore included. of cases classes additional New member of the a Cardozo, while Mr. Justice guage of v. Buick MacPherson in case of Appeals, of York Court 1050, Ann. Cas. E.N. N. Y. 382 Co., 217 [111 Motor 1916F, 696], appropriate: seems 1916C, R. 440, L. A. Win- then, principle of Thomas v. hold,
“We 455], to Dec. is not limited 397 Am. N. Y. 6 chester, [57 things nature, things like of explosives, and poisons, implements of destruc- operation are normal in their which reasonably is such that it thing a is nature of If the tion. negligently peril in and limb place life certain gives warning danger. Its nature thing of a it is then made, expected. If to еlement consequences to of the thing will knowledge be used danger there is added and used without new purchaser, by persons than the other 232
tests, irrespective then contract, manufacturer thing danger carefully. this is under duty a to make it That is as far as required are go we for the decision this case. ... presence In such a circumstances, danger, vigilance knоwn upon use, attendant a makes known duty. duty We have aside the notion that the to safe- put guard limb, life and consequences when the may be grows foreseen, nothing out of contract and else. put obligation We have ought source of the where put be. We have its source the law.” justice, same learned “The his work entitled Growth Law”, upon of the further comments sub- ject 77) : (The ed., p. 1924 follows Growth of Law, development merely “The assault, now phase is extending along upon the ancient citadel the entire line, privity. York, tort, remedy New there is a regardless negligent against manufacturer, subject likely where the the manufacture to be dan- (MacPherson Co., gerous to life v. Buick Motor 217 N. Y. 382 1050, N. E. Ann. A. 440, L. [111 Cas. R. 696].) 1916F, things classified as have been steadily extended with corresponding application remedy. They began v. Thomas 6 Winchester, N. 455], Y. Am. Dec. and the sale of [57 They poisons. have been widened they until include Smith, N. (Devlin Rep. scaffold v. 89 Y. Am. [42 311] or (MacPherson Co., an automobile supra), Buick Motor v. or pies even foreign cakes when nails and other sub- stances supplied ingredients have not mentioned in the reсipes of cook books.” tendency England
This same noted a recent de- Lords, styled Donoghue Stevenson, cision the House of v. (1932) Appeal subject Cases, ex- 562, where received tensive consideration and doctrine by Mr. announced approved. Cardozo Justice *4 in complete step This court has marched with these ad- vancing judicial pronоuncements. among Witness others Co., v. Elevator case Dahms General 214 recent Cal. 733 many (2d) 1013], (p. 740): Pac. where it said “In [7 jurisdictions, years, in recent there has been a marked exception beyond tendency under extend discussion those articles dangerous articles to which are inherently
233 negli peril if place limb in reasonably certain to life and also, (citing cases).” See, gently constructed prepared or 412 Co., 218 Cal. Barber Door effect: Hall v. the same Co., erg (2d) 279], Kolb Sherwin-Williams Pac. v. [23 975], and v. App. 609, Cal. Pac. [269 California Cliff Spray App. 424 Pac. Co., Chemical 83 Cal. [257 99]. by will good purpose We feel that no served range discussion attempting length at the wide to review rules development of the progressive has that attеnded the subject. Suffi involving this governing causes law now easily con stated we say principles ceth from the it to that jury for the as fact question of proper clude it was manufacture, recent or not an ladder of whether it, because plaintiff using became, as used im instrument assembling, defective construction an or minently dangerous to life limb. human or by the evi- appellant, not,
But whether or contended law, from actionable shows, dence as a matter of freedom assembling of said in the construction and question easily In this behalf presents a resolved. not so they are “Because as follows: court instructed the and are denied alleged by plaintiff true, to be proved: defendant, following are deemed to be fаcts material, workmanship any or defects That if there were possible discovery construction, such defects were not superficial general examination; observation hidden, in- existed, they were latent such defects ...” visible. practically to exonerate instruction was
The effect contributory negligence, but charge of from the strengthening defendant’s claim that effect it had the also manufacture of said ladder. ordinary care used judgment to one where the case reduced practically might have alone detected of woods the texture expert in an rung. Whether the standard of manufac- infirmity employment required expert of such trade ture clearly appear clearly apрear nor does does experts. Moreover, were not employees plaintiff so shaken and testified experts who practically demon- cross-examination upon weakened opinions. their unreliability strate the *5 undisputed The by respecting facts shown defendant manufacture of the ladder has were as follows: Defendant engaged been in mаny manufacturing the ladder for business employing years, competent mechanics, workmen, and skilled 200,000 laborers and annually foremen. It some constructs type ladders of the Apparently here in construct- involved. ing the rung ladder and finishing the in question, pursued customary its substantially course follows: The rung many was one of thousands in pur- included a carload from chase lumber gоod repute hardwood dealer of in quality trade, re- generally whose wares is spected ; when delivered it had been cut to size so that only necessary was for defendant fix ends into to fit by the sides of the ladder. The said carload was ordered sample, selected from a number samples good material by general manager, twenty defendant’s who had had some years’ experience purchasing Upon of ladder material. carload, arrival samples of the the material and were com- pared by manager experienced men; they said two were tally; hence, accepted, found the lumber was went into rungs stock and from it were finished ladder in going question. Before into stock, however, differеnt tests samples made on a set of were taken from the lot. One or put in pieces two were a vise and struck with ten-pound strength. sledge piece for a Another test was taken and put rails; rope between two side thrown rung was over the platform hung from which a was and a test of 800 pounds put was on it. question ladder was made from
The said stock subse- January 1929, quent tо within few months from the In process ladder, purchase. time of its manufacture the rung, through many and said went rung was hands. is, shaped tenoned fit into the ends were slightly to fit the reduced sides. process times rung was handled three operator, grain weight given. was observed and Any wood test brash- obvious, defect, have been ness or would detected piece. “heft” in the It customary fеel to handle was process tenoning. rung at a time one Thereafter the department rungs placed. went to another to be tested and rung placed, it was sound, nailed As each and the hammer, it was struck with a indicate would defect being assembled, or unsoundness. After ladders again inspected department. shipping and sales steps customary to follow each above-mentioned experienced in the construction to have an of the ladders and’ every operator every handling each each and nothing unpainted, rung thereof. ladders were sold *6 covered or concealed. showing contrary above set forth plaintiff of to that produced expert He who substance
was: two witnessеs they rung faulty could have stated that was and that inspection thereof; by that its discovered brash substance rejected they they had been it manufacturers would have ordinary rung moveover, and, as unfit ladder material that an mechanic or workman have able to detect not been would infirmity. developed largely upon evidence was its This theory attorney, his еvi- cross-examination defendant’s experts dently being if to dis- that it took wood textures defect, charged could be cover the then defendant not experts, ordinary premises. lack of care Both of said cross-examination, however, put practical test, to a on were inspection judgment, exhibiting to them for their rungs designated A, exhibits B and C. specimen сertain Rigelsberger A a brash exhibit was Witness testified piece of wood and unfit for use and that B exhibits and 0 strong pieces tough, were and reliable of wood. Witness A a good piece that exhibit was and that Wohlman testified put A exhibit 0 was brash and unfit. Exhibit was then to weight only the standard of 800 test and stood test actually pounds fracturing. pounds, before but stood 936% 800-pound B also withstood thе test suc- and C Exhibits produced already noted, party neither evi- cessfully. As obtaining among care setting up- the standard dence may may standard of ladders. This manufacturers product judg- each finished to the require the submission experienced in the classification of tex- expert, ment of an apply We are therefore hesitant to the rule tures of woods. оf evidence to this verdict. conflict of substantial moreover, definitely necessary, to declare is not proof for we absence law the as matter the instructions of many view that clearly are confusing so erroneous jury trial court to require judgment. a reversal of this plain- For instance, tiff’s instruction 11No. was as follows:
“It true may as a matter of law arise that cases which duty arising without of contract, breach as a matter may imputed of law If defendant. you find from the evidence that happened the accident through the character being, of the ladder dan- imminently gerous imminently and plaintiff injured because dangerous knowledge character ladder without his on part imminently dangerous character thereof, and you contributory find himself guilty was not negligence proximately question, related' the accident you will find a verdict in favor of the plaintiff.” instruction,
This was a so-called formula but it omitted proximate this, the rule of cause. More than it did not require negligence of all, at but be shown charged liability practically being insurer, as an only necessary to that the ladder was in inherently show fact ignorant. fact plaintiff and which requested formula
Another instruction by plaintiff given thing was No. as follows: “If the nature of a reasonably place that it certain is such life and limb *7 peril negligently made, thing danger. when it is then of gives warning consequences nature the be expected. Its to danger, knowledge the element of there is added If, to that by persons thing purchaser, used other than will be the the then, irrespective test, due used and without thing danger manufacturer of this is of contract the carefully. you if duty make it And to from under find the defendant did that the not -construct the ladder evidence plaintiff duty it to you owed carefully, it breached and plaintiff.” find in favor the consequently will contributory negligence both omitted That instruction and liаbility solely predicated upon and cause a fail- proximate “carefully” attempting the ladder without to ure construct standard care. It assumed applicable an that define danger, ques- which an instrument of was ladder the jury. the fact tion of request plaintiff,
Again, court, at the the after part No. and in declaring in instruction first warranty 21, undertaken manu No. struction rеspecting purchaser defects, latent used the a facturer however, you con- following language: that no find, “If de- plaintiff and relationship tractual existed between the is therefore, warranty mentioned fendant, and above regardless you I applicable, further instruct that regardless relationship between warranty of contractual and im- is article parties, if the liable is plain- to the unknown minently dangerous, that is and fact dangerous imminently injured tiff a result of such who as character of article.” charge defendant clearly instruction
This seems contrasting emphasize insurer the fact absolute and warranty manufacturer liability of a this that of the purchaser. his court, above, the apparent contradiction of jury request shown, instructed the at whose it follows: evidence that you from the 42. If find
“Instruction No. knowledge ladder any defect defendant had no your dangerous, verdict will inherently would render be for defendant.” the evidence you 46. from
“Instruction No. If find plaintiff’s employer ladder sold to that it was sold; inherently fact defective you also find the evidence that defendant believed from dangerous, inherently free from defects and not to be your defendant.” verdict be for will you 47. from the No. Unless find evidence
“Instruction danger arising from concealed that defendant workmanship material, construction from defects defendant.” your verdict will be for evidence, noted, Having mind state as above had a should have clearer think the and mоre accu- we applicable to the of the law ease. We are statement rate prejudice suffered material the defendant from view say notwithstanding the fact that We this too failure. were, proximate contributory cause in other charge, properly defined. parts *8 Judgment reversed. Waste, J., Thompson, J., J., C. and concurred.
Shenk, LANGDON, J., Dissenting. majority I dissent. The opinion holds duty that a of care plaintiff, was owed to only the remaining question whether the justified in finding a duty, is, violation of in find- ing that dangerous condition of ladder was result a negligence on part only of defendant. defect rung. was in the oak, generally It was made of wood a approved for the use to which put, particular it was but the piece was incаpable “brash” brittle, supporting weight. substantial purchased by It had been defend- ant from a concern in part of a carload lot Arkansas 100,000 over rungs. The evidence shows that less than rungs dozen out the carload bad been taken out and specially defects, only examined test- and that the other ing bywas the observation of the workmen who assembled they felt, thе ladders. If rung, in handling a it was light, sign brashness, too they discard would it. rungs of the assembled ladders were struck also through hammer to ascertain defects there- sound. appears fore rung, that no scientific test made of each prior either or after its insertion being matter ordinary left to the observation of the work- negligence depends men. Whether constitutes upon an questions: accurately answer two Could workman through observation; determine brashness wood could imprac- expert discover some reasonable and not limiting In settled rule power ticable test? view of the an appellate court to reach a conclusion on the factual question different from that reached jury, opinion evidencе, coupled I am plaintiff. out a legitimate inferences, makes case for witnesses, properly qualified experts, Plaintiff’s testified ordinary or mill not, by mechanic workman could that the strength simple observation, wood; determine ends, expert, by observation of the as cut, that an could Whether the cross-examination determination. make such a also, testimony course, their these witnesses weakened jury. question for the which, may used, an article construction human highly life, I think become defective degree Conceding low a care. too shows evidence *9 beyond that jury arbitrarily a standard may set recognized follow that community, does some indicates customary practice defendant, which danger degrеe standard. care, sufficiently meets defective to human life involved in the use of jury’s higher degree, require ladder (See support finds in the evidence. verdict therefore 579.) L., 18; R. sec. 19 Cal. Jur. C. by proper cured were all defects in the instructions instructions, agree I cannot
qualifying simple issue way as to the confused them by the facts. negligence presented affirmed. judgment I think the should J., J., concurred. Curtis, Seawell, Rehearing denied. July In Bank. 15145. F. No. 1934.]
[S. al., et v. ROBERT DOMIN Petitioners, GERTH OTTO A. City Clerk, Respondent. GUEZ, etc.,