RICHARD L. PALMQUIST, Appellant, v. H. W. MERCER et al., Respondents.
[L. A. No. 22604. In Bank.
Supreme Court of California
June 25, 1954.]
Parker, Stanbury, Reese & McGee and Richard E. Reese for Respondent Mercer.
Ball, Hunt & Hart, and Clarence S. Hunt for Respondent Union Oil Company.
Moss, Lyon & Dunn, Sidney A. Moss and Henry F. Walker for Respondent Tide Water Associated Oil Company.
SPENCE, J.- Plaintiff sought damages for personal injuries sustained by him while riding a horse which he had rented from a riding academy. At the close of plaintiff‘s case, the court granted defendants’ motions for nonsuit, and plaintiff appeals from the judgment subsequently entered. Upon consideration of the record, we have concluded that plaintiff‘s evidence was sufficient to require submission of the case to the jury as to defendant Mercer, who was the owner of the riding academy, but that the nonsuit was properly granted as to the other defendants.
A motion for nonsuit may properly be granted “... when, and only when, disregarding conflicting evidence, and giving to plaintiff‘s evidence all the value to which it is legally entitled, indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff.” (Card v. Boms, 210 Cal. 200, 202 [291 P. 190]; see also Blumberg v. M. & T. Inc., 34 Cal.2d 226, 229 [209 P.2d 1]; Golceff v. Sugarman, 36 Cal.2d 152, 153 [222 P.2d 665].) “Unless it can be said as a matter of law, that no other reasonable conclusion is legally deducible from the evidence, and that any other holding would be so lacking in evidentiary support that a reviewing court would be impelled to reverse it upon appeal, or the trial court to set it aside as a matter of law, the trial court is not justified in taking the case from the jury.” (Estate of Lances, 216 Cal. 397, 400 [14 P.2d 768]; see also Raber v. Tumin, 36 Cal.2d 654, 656 [226 P.2d 574].)
On October 10, 1950, plaintiff and his wife visited defendant Mercer‘s riding academy at 223d Street and Golden Avenue in the city of Long Beach. Plaintiff told the attendant that they would like to rent two horses and asked for “a couple of old nags.” He explained that he had not been on
After again discussing plaintiff‘s need for “gentle” horses, the attendant chose a horse named “Doc” for plaintiff and another horse for plaintiff‘s wife. At the time plaintiff mounted “Doc,” the horse was feeding at a trough. When plaintiff tried to get the horse to move away, it refused to respond to his reining, and it was necessary for the attendant to lead the horse from the trough. The attendant told plaintiff to go north on Golden Avenue, west on 223d Street, and then north again under a pipe trestle. The horses proceeded out of the driveway and at Golden and 223d Street, the horses, of their own accord, turned east. After going some thirty feet, plaintiff and his wife succeeded in turning the horses west. They continued a short distance, when the horses, again of their own accord, turned into a stable, walked to a water trough, began drinking, and for a time could not be guided away as plaintiff pulled on the left rein. Finally, the horses, plaintiff‘s mount in the lead, left the trough of their own volition and retraced the way to the riding academy. Plaintiff told the attendant that they were having trouble managing their horses. Upon reassuring them that “there was nothing wrong with the horses,” the attendant gave a demonstration of how to direct the horses by use of the reins. He then accompanied them back to the intersection of Golden and 223d Street, and then west on 223d Street until they were opposite a pipe line trestle located on the north side of the street. There was a road going west under the trestle and then making a bend and proceeding in a northerly direction. The attendant told them to bend over going under the trestle and then to ride as far as they liked.
The trestle traverses the Los Angeles River in an east-west direction and carries oil pipe lines of defendants Union Oil Company of California and Tide Water Associated Oil
Plaintiff and his wife rode under the trestle along the indicated road, with plaintiff‘s horse in the lead. After proceeding about 400 feet to the north at a walk, plaintiff turned his head to the left and called to his wife. As he made this movement, plaintiff‘s horse suddenly reeled about to the left and began racing back on the road toward the trestle, gaining speed as it went. Plaintiff attempted in vain to control or stop the horse by pulling back on the reins as hard as he could with both hands, but the horse kept going faster, passed plaintiff‘s wife and ran around the bend in the road towards the trestle. Immediately before the accident and at a distance of some 8 to 10 feet from the trestle, plaintiff noticed some underhanging beams stretching over the traveled area at a height of about 6 feet. Plaintiff was then lying flat in the saddle, with his head held down as far to the right as he could get it and his left shoulder pointing upwards. His left shoulder and neck hit a stationary object such as the understructure of the pipe trestle, and plaintiff blacked out. When he regained consciousness he was lying immediately to the south of the pipe trestle, approximately 5 feet from the nearest substructure of the trestle and immediately south of the traveled area under the trestle. As a result of the accident, plaintiff is permanently paralyzed from the waist down.
Plaintiff, who was 21 years of age when the accident occurred, sought damages from defendants Mercer, owner of the riding academy and stables; the Union Oil Company, owner of the trestle; and Tide Water Associated Oil Company, which maintained a pipe line upon the trestle. Plaintiff‘s complaint rests on two theories of recovery: breach of warranty and negligence. The breach of warranty cause of action is directed only against defendant Mercer and is based on the alleged unsuitability of the horse rented to plaintiff in view of plaintiff‘s disclosed inexperience in riding. The negligence cause of action is directed against all three defendants: against Mercer in assigning to plaintiff a horse allegedly known to be both dangerous and unmanageable, and in telling plaintiff to ride along what appeared to be a public road whereon a hazardous condition existed, and against the two oil companies in maintaining a hazardous condition, the trestle, without providing reasonably effective safeguards. By separate answer defendant Mercer denied plaintiff‘s charges of breach
In support of the nonsuit exonerating him from liability, defendant Mercer relies on the release signed by plaintiff at the time of hiring the horses. It stated that plaintiff did “fully and forever release and discharge the Equestrotel Riding Academy and the operators thereof from any and all claims, demands, damages, rights of action or causes of action on account of either known or unknown, concealed or hidden, external or internal, personal, physical injuries, damages or causes, or otherwise, or damages or injuries of every kind and character resulting from, or which may result from or during the rental time therein provided, either directly or indirectly. . . . I expressly rent the horse at my own risk and assume full responsibility for all matters resulting from or that may occur by reason thereof and agree to pay the rental charges on demand.” Admittedly plaintiff was not prevented from reading the release, and whether he did or not would be immaterial. As stated in Smith v. Occidental & Oriental Steamship Co., 99 Cal. 462, at pages 470-471 [34 P. 84]: “The general rule is that when a person with the capacity of reading and understanding an instrument signs it, he is, in the absence of fraud and imposition, bound by its contents, and is estopped from saying that its provisions are contrary to his intentions or understanding.” (See also Nichols v. Hitchcock Motor Co., 22 Cal.App.2d 151, 153 et seq. [70 P.2d 654].)
Plaintiff maintains that the question of validity of the release should have been submitted to the jury as a factual issue to be determined in the light of the circumstances surrounding its execution. His theory of recovery against Mercer sustains his position.
Here there was evidence that Mercer knew that the horse “Doc,” when rented to plaintiff, was not “tame and gentle” but was high-spirited, headstrong, difficult to control, had a “tough mouth,” and was not suitable for an inexperienced rider. The manager of the academy at the time “Doc” was acquired in June, 1950, and until the following September, testified that on several occasions during that period he had told Mercer these facts in reporting the accounts of various riders in their attempts to handle “Doc“; that he had also told Mercer that “Doc” was “barn sour” (i.e. disliked leaving the stable and when away, had a tendency to return quickly of his own volition) and he had advised Mercer to get rid of the horse, that “Doc” should not be on the rental string because he wasn‘t trustworthy. There was further evidence that on a number of occasions prior to plaintiff‘s accident (October 10, 1950) “Doc” had bolted with his riders, one person testifying that she suffered severe injuries as the result of being thrown from the saddle and another witness, an experienced rider, testifying that she had considerable difficulty in keeping the horse under control. The various riders reported these incidents to the manager of the riding academy. In such circumstances, the matter of whether at the time and place in question the horse “Doc” was unsafe or unsuitable for the purpose for which he was hired would be for the jury to determine. Likewise for determination of the jury as questions of fact under all the cir-
Plaintiff properly maintains that the evidence presents the further issue of whether there was fraud or misrepresentation on the part of Mercer in causing plaintiff to sign a release absolving the academy from all liability when Mercer knew of plaintiff‘s inexperience-as plaintiff had so advised the attendant at the academy in asking for “tame and gentle horses” (Clowdis v. Fresno Flume etc. Co., 118 Cal. 315, 321 [50 P. 373, 62 Am.St.Rep. 238])--and of the dangerous propensities of the horse “Doc,” which nevertheless was assigned to plaintiff. “All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud . . . are against the policy of the law.” (
However, there is no evidence which would sustain plaintiff‘s claim against the two defendant oil companies, and the nonsuits were properly granted as to them. Plaintiff argues these theories of liability on this phase of the case: that the place of the accident was a public roadway and the trestle maintained thereon by the oil companies constituted a public nuisance; but in any event, they were chargeable with the consequences of any injuries allegedly caused by their negligent maintenance of the trestle.
Plaintiff concedes that the accident occurred on property controlled by the Los Angeles Flood Control District. The
Plaintiff argues that the trestle obstructed the public‘s “free passage or use, in the customary manner,” of the crossing beneath and therefore constituted a “public nuisance.” But it indisputably appears that the trestle was not on a public street or highway, as required by the statutory sections cited by plaintiff. (
Nor does it appear that Union Oil Company breached any duty owing to plaintiff by reason of its maintenance of the trestle. In exercising its right to maintain the trestle, Union Oil Company was acting by express permission of the flood control district, like the holder of a franchise. (See City of Oakland v. Hogan, 41 Cal.App.2d 333, 346-347 [106 P.2d 987].) As such, its status was akin to that of the legal possessor of property, having no greater duty or obligation than the landowner with respect to the condition of the property in relation to a person coming on the property either as a trespasser or licensee. (Lindholm v. Northwestern Pac. R. Co., 79 Cal.App. 34, 40 [248 P. 1033]; 65 C.J.S.
Plaintiff relies upon numerous cases in support of his claim that since the Union Oil Company had knowledge of prior accidents in the general area where plaintiff was injured, it was obligated to correct any dangerous or defective condition there existing. However, the cases cited by plaintiff are not in point, for in the main they concern dangerous conditions in structures over or on public streets and highways. (E.g., Shea v. City of San Bernardino, 7 Cal.2d 688 [62 P.2d 365]; Sandstoe v. Atchison T. & S. F. Ry. Co., 28 Cal.App.2d 215 [82 P.2d 216]; Gibson v. Garcia, 96 Cal.App.2d 681 [216 P.2d 119]; Postal Tel. Cable Co. v. Young, 172 Ky. 576 [189 S.W. 707].)
Plaintiff argues the further point that the alleged negligent maintenance of the trestle was a question for the jury to decide, citing Davoust v. City of Alameda, 149 Cal. 69 [84 P. 760, 9 Ann.Cas. 847, 7 L.R.A.N.S. 536], and Davis v. Pacific Power Co., 107 Cal. 563 [40 P. 950, 48 Am.St.Rep. 156]. Both cases are clearly distinguishable on their facts. In the Davoust case plaintiff, a licensee walking along a path across a vacant lot, was killed upon coming in contact with a live wire from an electric plant belonging to defendant, a trespasser on the property. There was no discussion of liability between the parties had defendant been using the
Similarly, the record furnishes no support to plaintiff‘s claim of liability against defendant Tide Water Associated Oil Company. In 1936 Union Oil Company gave Tide Water Associated permission to place and maintain one pipe line upon the trestle. Under their agreement, cost of maintaining the trestle was divided between the two oil companies, but all control over maintenance, operation and repair of the trestle was retained by Union Oil Company. In view of our conclusion that the evidence was insufficient to impose liability upon defendant Union Oil Company, it necessarily follows that such evidence was likewise insufficient to impose liability upon defendant Tide Water Associated Oil Company.
The judgment of nonsuit is reversed as to defendant Mercer but affirmed as to defendants Union Oil Company and Tide Water Associated Oil Company.
Shenk, Acting C. J., Edmonds, J., and Bray, J. pro tem.,* concurred.
Traynor, J., concurred in the judgment.
CARTER, J.-I concur in the judgment of reversal. However, the rule applicable to gratuitous licenses should not be as stated in the majority opinion.
“(a) knows of the condition and realizes that it involves an unreasonable risk to them and has reason to believe that they will not discover the condition or realize the risk, and
“(b) invites or permits them to enter or remain upon the land, without exercising reasonable care
(i) to make the condition reasonably safe, or
(ii) to warn them of the condition and the risk involved therein.” (Rest. Torts, § 342.)
Also, our statutes read: “Everyone is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself.” (Emphasis added;
“Thus, while there are many cases holding that a land owner is only required to refrain from inflicting wanton or wilful injuries on a trespasser or licensee (see many cases collected 19 Cal.Jur. p. 616, § 52, fn. 13), there are many cases also holding that after ‘a trespasser is seen in a position of danger, due care must be exercised to avoid injuring him, and it is negligence not to do so.’ (19 Cal.Jur. p. 616, § 52, at p. 617; see cases collected in fn. 17 on p. 618.) This duty of reasonable care not only extends to situations where
“Many courts, in imposing this duty of reasonable care towards trespassers and licensees, have drawn a distinction between active and passive negligence, and have limited the reasonable care test to overt acts of negligence. (See annotation 49 A.L.R. 778.) California has quite clearly adopted this distinction and imposed a duty to exercise reasonable care towards known licensees or trespassers so far as active operations are concerned. In the well-reasoned case of Oettinger v. Stewart, 24 Cal.2d 133, 138 [148 P.2d 19, 156 A.L.R. 1221], cases to the contrary were expressly overruled. (See also Herold v. P. H. Mathews Paint House, 39 Cal.App. 489, 493 [179 P. 414]; Barnett v. La Mesa Post No. 282, 15 Cal.2d 191, 194 [99 P.2d 650]; Yamauchi v. O‘Neill, 38 Cal.App.2d 703, 708 [102 P.2d 365]; Hamakawa v. Crescent Wharf etc. Co., 4 Cal.2d 499, 503 [50 P.2d 803].) This rule imposing a duty to exercise reasonable care towards known trespassers so far as affirmative acts are concerned, is in accord with the modern trend of authorities.” (Fernandez v. Consolidated Fisheries, Inc., 98 Cal.App.2d 91, 95 [219 P.2d 73].) The real factor is whether the person is known by the owner to be on the premises and in case of a licensee or even a trespasser, he may have that knowledge. (See Oettinger v. Stewart, 24 Cal.2d 133 [148 P.2d 19, 156 A.L.R. 1221].) In the case of licensees the landowner knows they are there and when he also knows there is a dangerous condition which they will encounter, it is not unreasonable to impose upon him the duty of taking some measure to protect the licensee from the danger (see 38 Am.Jur., Negligence, § 106) and that is the modern trend. (James, Tort Liability of Occupiers of Land: Duties Owed to Licensees and Invitees, 63 Yale L.J. 605.)
It is not necessary in this case to state that a property owner is liable to a gratuitous licensee only for wanton or
*Assigned by Chairman of Judicial Council.