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had obtained $5,000 in cash and the return of
his personal promissory notes for 5-4000 and
$3,000, respectively, by giving his eyed-
$10,200 promissory note, which peti-
tiffer had purportedly executed with a co-
maker, but that petitioner had wrongfully
affixed the signature of another to the note
as a comaker, without such person's
knowledge or authorization. In the second
matter, the Board of Governors found that
on March 10, 1939, petitioner had receired a
$2,600 check from his client, to be retained
by petitioner as trustee and used in
connection with the purchase of certain real
property by the client. Petitioner deposited
the proceeds of the check in his trust
account on March 10, 1959, but immediately
withdrew $2,000 and misappropriated it.
The real estate transaction was completed
in March 1959 except for payment of the
funds. On March 27, 1959, petitioner on
behalf of his client, delivered
_a $3,441 check to the title company, drawn
on his trust account; but the check was
no returned umaid for insufficient funds. In
'4
" spite of repeated requests by the title com-
pany for payment to complete the transac-
tion, petitioner did not make full payment
1 July 21, 1959, almost four months la-
Under the circumstances, it will be
seen that petitioner was following a pat-
tern which he had previously established
and for which he had previously been dis-
ciplined.
[3] Petitioner's action in the present
matter is sufficient to warrant the discipline
recommended by the disciplinary board
even without consideration of his prior
record. His prior record, however, may
properly be considered in determining the
appropriate discipline. (Eschwig v. State
Bar, 1 CaL3d 8, 18-19, SI CaLRptr. 352, 459
P.2d 904.) In Bruns v. State Bar, 18 Ca1.2d
667, 673, 117 P.2d 327, 334. a disbarment
matter, this court stated: 'Although ten
years have elapsed since the previous
disciplinary proceedings against petitioner *
* * it is apparent that the discipline then
administered did not succeed
in imparting to him an understanding of the
duties of an attorney to his clients and to the
public."
Under the circumstances, further disci-
pline is warranted, and the recommended
discipline is lenient in view of the attitude
shown by petitioner.
It is ordered that petitioner be suspended
from the practice of law for a period of five
years on conditions of probation, including
actual suspension during the first two
years, effective 30 days from the filing of
this opinion.
467 P.2d 229
2 Ca1.3d 465
jilobert W. PIKE, a Minor, etc., at al., 1465
Plaintiffs and Appellants,
v.
FRANK G. HOUGH COMPANY et al.,
Defendants and Respondents.
Sac. 7851.
Supreme Court of California,
In Bank.
April 17, 1970.
Wrongful death action against manu-
facturer of paydozer which struck and killed
employee. The Superior Court, Butte
County, Vernon Stoll, J.,1
granted defen-
dants' motion for nonsuit and appeal was
taken. The Supreme Court, Mosk, Acting C.
J., held that evidence on motion for non-suit
in wrongful death action against manu-
facturer of paydozer which struck decedent
while it was backing up warranted jury's
conclusion that manufacturer should have
been aware that machine's structural design
made it impossible for operator to see man
standing anywhere between one and 43 feet
behind machine and that manufacturer who
failed to correct such deficiency with
rearview mirrors, or other comparable de-
vice, violated duty to produce product rea-
1. by Chair:eau of Judicial Council.
lUsi3d i65 PIKE v :FRANK G. HOUGH COMPANY
Cite sus. Sup.. 83 CaLRptr. a29
62 9
630 85 CALIFORNIA REPORTER 2 CALM 465
sonably safe for its intended use. The Court
further held that doctrine of strict liability
may be applicable to manufacturer of
paydozer which was designed to go forward
and backward but had blind spot so that
operator could not see six foot tall man
standing one foot to 48 feet behind machine.
 Reversed,
Opinion, 80 Cal.Rptr. 501, vacated.
1. Appeal and Error C=z866(1)
Issue on appeal from grant of defen-
dant's motion for nonsuit in wrongful death
action against manufacturer of paydozer
was whether evidence presented by plain-
tiffs, viewed favorably to their cause, was
sufficient to support finding that manufac-
turer was liable to plaintiffs for negligently
designing paydozer or that manufacturer
was strictly liable for defects in paydozer
causing decedent's death.
2. Negligence C=,
27
Manufacturer must use reasonable care
to so design his product as to make it not
accident-proof but safe for use for which it
is intended.
3. Negligence C=327
"Reasonable' care" in designing
machine varies with facts of each case but
involves balancing of likelihood of harm to be
expected from machine with given design and
gravity of harm if it happens against burden
of precaution which would be effective to
avoid harm.
4. Automobiles C=016
Evidence on motion for nonsuit in
wrongful death action against manufacturer
of paydozer which struck decedent while it
was backing up warranted jury's conclusion
that manufacturer should have been aware
that machine's structural design made it
impossible for operator to see man standing
anywhere between one and -18 feet behind
machine and that manufacturer who failed
to correct such deficiency with rearview
mirrors, or other comparable device,
violated duty to produce product reasonably
safe for its intended use.
5. Automobiles C=.16
Danger of dump truck spotter being
struck by paydozer used to compact earth
was not such a patent peril that paydozer
manufacturer had no duty to install safety
devices to protect against obvious danger.
6. Negligence C:527
Obviousness of peril is relevant to
manufacturer's defenses, not to issue of
manufacturer's duty.
7. Negligence C=.66(2)
If bystander does not exercise due care
to protect himself from evident peril, he
may be contributorily negligent.
8. Negligence e=1
.136(26)
Issue of contributory negligence is
normally for jury.
9. Automobiles C=,
16
Evidence on motion for nonsuit in
wrongful death action against manufacturer
of paydozer which, while backing up, struck
and killed dump truck spotter and which
was designed in such way that operator
could not see six foot tall man standing one
foot to 48 feet behind paydozer was insuf-
ficient to establish decedent's contributory
negligence as matter of law.
10. Negligence 0=,
27
Obviousness of peril does not preclude
liability on part of manufacturer which
negligently designed machine.
11. Automobiles C=.16
Doctrine of strict liability may be ap-
plicable to manufacturer of paydozer which
was designed to go forward and backward
but had blind spot so that operator could
not see six foot tall man standing one foot to
48 feet behind machine.
12. Automobiles e=16
Jury could decide that earth moving
machine with 48-foot by 20-foot rectangular
blind spot was dangerous to extent beyond
that which would be contemplated by ordi-
nary consumer who purchases it, or by a
bystander, with ordinary knowledge com-
mon to community as to its characteristics.
2 CaL3d 469 PIKE v. FRANK G. HOUGH COMPANY 631
Cite as. Sup., 85 Cai. Rpm 029
P. M. Barceloux, Burton J. Goldstein, Al- case, defendant moved for a nonsuit which
bert E. Levy, Ralph Golub and Goldstein, was granted.1
Plaintiffs appeal.
Barceloux & Goldstein, San Francisco, for (I] As we have consistently pointed out
plaintiffs and appellants, a "nonsuit in a jury case or a directed ver-
Edward I. Pollock, Los Angeles, Robert diet may be granted only when disregarding E.
Cartwright, San Francisco, Theodore A. conflicting evidenc:e, giving to the plaintiffs'
Horn, Los Angeles, Marvin E. Lewis, San evidence all the value to which it is legally
Francisco, William H. Lally, Sacramento,
entitled, and indulging every legitimate in-
Ned Good and Leonard Sacks, Los Angeles, ference which may be drawn from the ev-
as arnici curiae on behalf of plaintiffs and idence in plaintiffs' favor, it can be said
appellants. that there is no evidence to support a jury
verdict in their favor." (Elmore v. Amer-Rich, Fuidge, Dawson, Marsh & Morris ican Motors Corp.
(1969) 70 Ca1.2d 578, and Dennis C. Noonan, Marysville, for de- 583, 75 Cal.Rptr. 652, 655, 451
P.2d 84, 87.)
fendants and respondents. Thus, the issue before us in this appeal is
whether the evidence presented by plait-
IL
1 1 0 S X , Ac t in g C h ie f Ju st ic e . t if f s, v ie w e d fa vo r a b ly t o t h e ir c a u se , w a s
su f f ic ie n t t o s u p p o r t a ju r y ve r d ic t f in d in g O n J u ly 1 5 , 1 9 6 4 , a t 3 :1 0 a . m. , R o b e r t
th a t d e fe n d a n t w a s lia b le t o p la in t if f s fo r P ik e w a s k il le d w h e n h e w a s s tr u c k b y a
n e g li g e n t ly d e s ig n in g th e p a y d o z e r o r t h a t H o u g h M o d e l D - 5 0 0 P a y d o z e r , w h ic h
w a s d e fe n d a n t w a s s tr ic t ly lia b le to p l a in t if f s be i n g u se d in th e c o n s tr u c t io n o f
th e O r o - f o r d e fe c ts in th e p a y d o z e r c a u s in g d e c e v il le D a m. P ik e w a s w o r k in g t h e
n ig h t d e n t ' s d e a t h . .
shift as a "spotter" for Oro-Dam Con- The record establishes the following ev-
structors, and his assignment was to direct idence most strongly in favor of plaintiffs:
dump trucks in the area in which dumped The area in which the accident occurred fill was
to be spread and tamped down by was well illuminated with mercury lights the paydozer.
On the morning of the ac-
and visibility was good despite the hour of
cident, the men were filling in a corner of the morning. When decedent was struck, the dam
surface, and in doing so it was
the paydozer was in the process of revers-
necessary for the paydozer to go forward ing to position itself to then move forward
to spread and tamp down fill ; behind the and
then backward within a short distance
paydozer decedent was directing dump to
accomplish the spreading and tamping of trucks in depositing fill which was to be the
earth. Decedent was some 30 to 40 feet spread and tamped by the paydozer at a behind
the paydozer, standing on an angle later time. Prior to backing up, the oper with his back
to the paydozer when it back- ator of the paydozer, who had not observed
e d u p a n d s tr u c k h im . P ik e f o r a b o u t f i ve m in u te s, lo o k e d t o t h e
D e c e d e n t ' s w id o w a n d m in o r c h ild r e n re a r t o a sc e r ta in if it w a s c le a r , b u t h e d id
b ro u g h t th is a c t io n f o r w r o n g f u l d e a t h n o t se e P ik e , w h o w a s s ta n d i n g 3 0 t o 4 0
fe e t b e h in d th e ve h ic le a n d w e a r in g a lu m in o u s a g a i n st t h e m a n u f a c t u re r o f t h e
p a y d o z e r .
jacket. The operator testified that there
.up The case was tried to II jury. Plaintiffs was a substantial blind spot to the rear of sought
to establish the liability of the defen- the paydozer because of its design. He also dant
on either a negligence or a strict lia- testified that the lighting was clear enough bility
theory, based on the design of the so that workers on the other side of the paydozer. At
the conclusion of plaintiffs' dam were visible.
I. International Harvester Company. which
owns the stock of Frank G. Hough Com-
pany. was also named a defendant and
awarded a nonsuit. Its nonsuit. granted
on the ground that it played no part in the
manufacture of the paydozer, is not
contested on this appeal.
77-7.77-'77-'171171""Pr Ir.' : • ,
1 1 0 0 .
3 . :
4
• -•• • ,: -":?"'
632 85 CALIFORNIA REPORTER 2 Ca1.3d 469
The Hough paydozer was a large, noisy
earth-moving machine. It was designed to
move backward as well as forward and, as
here, to perform in confined areas. It was
equipped with two white headlights, and, on
the rear, two red taillights and t•o white
lights. At the time of the accident, only the
red taillights were illuminated; the
headlights were turned off because the
dump truck operators complained of the
glare, and the rear white lights were off
because they blinded other equipment oper-
Aro atorworking in the vicinity. The pay -dozer
had no rearview mirrors arid no audible
or visible backup warning signal.
Robert Snyder, a registered mechanical
engineer, appeared as an expert for plain -
tiffs. According to his testimony, the design
of the paydozer with its large engine box to
the rear created a blind area behind the
paydozer of such dimension that, if the
operator looked behind him while sitting in
the cab, he could not see a man six feet tall
standing anywhere between one and 48 feet
to the rear of the machine. The blind area
extended laterally at least 10 feet to each
side of the midline of the paydozer. Snyder
testified that the blind area could be reduced
from a rectangle 48 feet by 20 feet to a
cone-shaped area with a maximum length
behind the machine of 12 feet by installation
of two rearview mirrors located four feet
out from each side of the cab. The four-foot
distance, he pointed out, would not project
the mirrors beyond the vertical line of the
huge tires on the tractor. The mirrors he
described were similar to those he had seen
on ditchdigging equipment. He also
recommended a blinking amber light or a
tooting horn to alert persons within the
remaining blind area.
In nonsuiting plaintiffs on their negligence
cause of action, the trial court held as a
matter of law that a vehicle intended to
move backward is not negligently designed
although the operator cannot see a man 30 to
40 feet behind him in the direct path of the
vehicle and although simple mirrors and
lights could alleviate the danger. The court
was in error; this was essentially a question
of fact for determination by the jury.
[2, 3] The duty of a manufacturer with
respect to the design of products placed on
the market is defined in the Restatement
Second of Torts, section 398: "A manu-
facturer of a chattel made under a plan or
design which makes it dangerous for the
uses for which it is manufactured is subject
to liability to others whom he should
expect to use the chattel or to be endanger-
ed by its probable use for physical harm
caused by his failure to exercise reasonable
care in the adoption of a safe plan or de-
sign." Thus, the manufacturer must use
reasonable care " 'to so design his product
as to make it not accident-proof, but safe
for the use for which it was [sic] intended.'
" (Varas v. Barco Mfg. Co. (1962) 205
Cal.App.2d 246, 258, 22 Cal.Rptr. 737.
744, quoting from 76 A.L.R.2d 91, 94.)
What is "reasonable care," of course, varies
with the facts of each case, but it involves
a balancing of the likelihood of harm to be
expected from a machine with a given
design and the gravity of harm if it happens
against the burden of the precaution which
would be effective to avoid the harm. (2
Harper and James, The Law of Torts
(1956) § 23.4, p. 1542.)
[4] Applying the foregoing standards to
the cas e at bar, it w•ould js eem a jury ,J 71
could conclude that a m anufacturer of a
vehicle intended to go backward should
have been aware that the machine's
s tructural des ign made it impossible for
the operator to s ee a man s tanding any-
where between one and 48 feet behind the
machine and in its direct path. And,
having s o found, a jur y could decide that a
manufacturer who failed to c orrect this
deficiency with two rearview mirrors , or
any comparable device, vio lated his duty to
produce a product reas onably s afe for its
intended us e. Although that res ult may not
have been compelled, the evidence was
sufficient to jus tify s uch findingi, and
Although no cases
in Cab fornia or other jurisdictions have
considered facts identical to those in the
instant action, the weight of authority
supports a finding of negligent
design. In Zahora v. Harnisch feger Cor-
poration (7th Cir. 1968) 404 F.2d 172, the
circuit court reversed a summary judgment
for defendants under somewhat comparable
circumstances. While plaintiff was look-
ing into the malfunctioning in the bridge
of a crane, the operator moved the crane
and crushed him aga inst the cab. The
operator testified that he could not see
plaintiff and that it was probably because
the bottom half of the door to the cab was
metal, so that his vision of the bridge was
restricted. On the basis of this evi-
dence, the court stated: "Viewing the
implications and inferences of the operator's
deposition in a light most favorable to the
plaintiff, we find his comments suggest it is
at least disputable whether or not the cab
design permitted the operator that amount
of vision necessary to the safe operation of
the crane." (Id. at p. 177.) In the case at
bar, the trial court granted a nonsuit, rather
than a summary judgment, but these
plaintiffs' evidence was stronger than that
in Zahora. Here no reliance on mere
"implications and inferences" is required,
for the expert witness testified that there
was a definite massive blind area behind
the paydozer, but that installation of
-
two mirrors would have made decedent
visible to the operator long before the
point of impact.
Our recent case of Menchaca v. Helms
Bakeries Inc. (1968) 68 Cal2d 535, 67 Cal.
Rptr. 775, 439 P2d 903 lends support to
plaintiffs' position that they were wrong-
fully nonsuited. We held there that an
issue of jury dimensions was raised as to
whether a bakery truck was negligently
equipped in lacking mirrors to correct a
2. Of course, plaintiffs must show causation
as well ns breach of duty. But Snyder
testified that the blind spot would have
been reduced to 12 feet with mirrors, a
distance beyond which the decedent was
OSCJIRpu,-401
/2
plaintiffs need do no
such evidence to avoid
2 Cal.3d 472 PIKE v. FRANK G. HOUGH COMPANY 633
Cite am, au p., Ni Cain 't e. t,211
more than produce blind spot. "Considerable evidence indicated
a nonsuit.2
that the truck had been negligently equip-
A - 4
ped. Defendant planned and intended the
truck to attract children to purchase
bakery products fromjit ; defendant knew
that a substantial blind spot in front of the
truck obscured the vision of the driver;
defendant nevertheless equipped the truck
with a mirror that revealed to the driver
only the central third of the [front]
bumper. Sure ly d efendant bo re an ob -
ligation to equip the truck so as to provide
for its safe operation and avoid danger to
its expected customers, who were small
children. * * * The testimony showed
that Richard became the unfortunate victim
of defendant's alleged breach of duty.
Richard, who was 36 inches tall, was stand -
ing immediately in front of the truck and
probably did not come within the driver's
vision because of the truck's blind spot; yet
additional mirrors would have made him
clearly visible. The court erred, therefore,
in removing from the jury's consideration
the factually disputed issue of whether or
not the truck was negligently and
dangerously equipped." (Id. at pp. 540-541,
67 Cal.Rptr. at p. 778, 439 P.2d at p. 906.)
By parity of analysis, plaintiffs' evidence in
the instant action created a triable issue
whether the paydozer was negligently and
dangerously designed without mirrors to
provide a range of vision for the operator to
avoid accidents in backing up.
Other California cases recognize a cause
of action against a manufacturer for negli-
gent design of a product and support plain -
tiffs' contention that failure to provide
reasonable safety devices may constitute
negligence. "plot- the purpose of showing
that there has been a failure to comply with
the standard of due care, it is proper to
introduce evidence as to the necessity and
feasibility of changes in the design of parts
of a machine so as to enhance the factor
o f s a fe t y ." (V a ra s v. Ba rc o Mfg. Co .
positioned ; that testimony should have
been sufficient to establish that the de-
fendant's negligent failure of design caused
the decedent's death. There is no serious
issue of causation raised on this appeal.
•
634 85 CALIFORNIA REPORTER 2 CaL3d 472
(1962) supra, 205 Cal.App.2d 246, 259, 22
Cal.Rptr. 737, 744.) In Varas, it was held
that evidence, showing that the threads on
the gas cap of an earth-compacting
machine permitted oil and gas to spray onto
the operator while other feasible threads
would not, was sufficient to avoid a
nonsuit in an action for personal injuries to
.the operator resulting from his catching
fire due to the oil and gas on his body.
Similarly, Reynolds v. Natural Gas Equip-
ment, Inc. (1960) 184 Cal.App2d 724, 7
Cal.Rptr. 879 held that it was error to non-
suit a plaintiff who offered evidence that
the explosion causing his injuries resulted
from the unexplained closing of the air cap
on a burner which could have been avoided
by a safety weld or a set screw in the
design of the burner. Other cases which
hold evidence of absence of feasible safety
features in design causing plaintiff's
injuries was sufficient to avoid a nonsuit
include Boeing Airplane Company v.
Brown (9th Cir. 1961) 291 F.2d 310 ;
Robinson v. Reed-Prentice Corporation
(9th Cir. 1961) 286 F.2d 478; and Darling
v. Caterpillar Tractor Co. (1959) 171 Cal.
App2d 713, 341 P.2d 23.
The foregoing authorities and the case at
bar are distinguishable from Hatch v. Ford
Motor Co. (1958) 163 Cal.App2d 393, 329
P2d 605. In Hatch, plaintiff, a young child,
lost his eye when he walked into a nine
and three-fourths inch hood ornament on a
parked Ford automobile. The court
Aptiaffirmed a judgment for defendant entered
upon a general demurrer, but carefully
delineated the reasons for its holding:
"There is not involved in this case any
question of a defect which created a risk of
injury to its driver or passengers therein or
to persons upon the highway through its use
in the normal manner for which it was
manufactured to be used • * *. If we were
to hold that there was a duty to render a
vehicle safe to collide with rather than
simply a duty to so manufacture it as to
make it safe for the use for which it is
intended, i. e., to move upon the highways
or to be safely parked, that duty would
apply not only to ornaments * • • but
to functional parts of the vehicle. • * *
In other words, each case in which a
person collided with a standing vehicle
and received some injury from a part of
the vehicle which injury he might not
have sustained had the vehicle been con-
structed in some other manner would
raise a question of fact as to whether the
manufacturer was liable to that person."
(Id. at pp. 396-397, 329 P.2d at p. 607.)
By contrast, in the instant case, a jury
could find the decedent was killed as a
result of defects in the design of the
paydozer which created a substantial and
unreasonable risk of injury to persons
working in the vicinity of the paydozer
while it was engaged in its normal
backing-up operations necessary to the
moving and compacting of earth.
[5-9] Defendant contends that the dan-
ger of being struck by the paydozer was a
patent peril and, therefore, that it had no
duty to install safety devices to protect
against an obvious danger. We do not
agree. First, although all vehicles contain
the potential of impact, it is not necessarily
apparent to bystanders that the machine
operator is incapable of observing them
though they are 30 to 40 feet behind the
vehicle and in its direct path. The danger to
bystanders is not diminished because the
purchaser of the vehicle is aware of its
deficiencies of design. The manufacturer's
duty of care extends to all persons within
the range of potential danger. Second, the
obviousness of peril is relevant to the
manufacturer's defenses, not to the issue of
duty. If a bystander does not exercise due
care to protect himself from an evident
peril, he may be contributorily negligent.
(Brooks v. Allis-Chalmers Mfg. Co. (1958)
163 Cal.App.2d 410, 415, 329 P.2d 575.)
But the issue of contributory negligence
is one normally for the jury ; c:early the
evidence here did not justify nonsuiting
plaintiffs on the ground of decedent's con-
tributory negligence as a matter of law.
(See Varas v. Barco Mfg. Co. (1962) supra,
205 Cal.App2d 246, 262-263, 22 Cal.Rptr.
737.) Indeed, *" [ w ] here a person must
2 CaL3d 475 PEKE v. FRANK G. HOUGH COMPANY 635
cue Cal.Uptr.629
work in a place of possible danger the
amount of care he is bound to exercise for
his own safety may well be less by reason
of the necessity of his giving attention to
his work than would otherwise be the
case.'" (205 Cal.App2d at p. M3, 22 Cal.
Rptr. at p. 747, quoting Johnson v. Nichol-
son (1958) 159 Cal.App.2d 395,.410, 324 Pfd
307.)
zia 1[10] Finally, even if the obviousness of the
peril is conceded, the modern approach
does not preclude liability solely because a
danger is obvious. "Today, however, the
negligence principle has been widely ac-
cepted in products liability cases; and the
bottom does not logically drop out of a
negligence case against the maker when it
is shown that the purchaser knew of the
dangerous condition. Thus if the product
is a carrot-topping machine with exposed
moving parts, or an electric clothes
wringer dangerous to the limbs of the
operator, and if it would be feasible for the
maker of the product to install a guard or a
safety release, it should be a question for
the jury whether reasonable care
demanded such a precaution, though its
absence is obvious. Surely reasonable men
might find here a great danger, even to one
who knew the condition; and since it was
so readily 'avoidable they might find the
maker negligent. Under this analysis the
obviousness of a condition will still
preclude liability if the obviousness
justifies the conclusion that the condition
is not unreasonably dangerous; otherwise
it would simply be a factor to consider on
the issue of negligence. * * * The greatest
conceptual obstacle to recovery * * *
conies in the case where the buyer himself
is hurt by the article. * * *• Surely it is well
within the framework and spirit of [recent]
common law modifications to require rea-
sonable care to protect even the buyer
himself from what may be foreseen as an
unreasonable danger to him. But even if
courts are unwilling to go so Ear, without
legislation, in the case of the adult buyer
or user, the existing law of negligence de-
mands this duty of care where others are
threatened by want of a feasible safety de-
vice wherever the foreseeable danger to
them is unreasonable." (Harper and
James, The Law of Torts, supra, § 28.5, pp.
1543, 1545.)
To the same effect see 71 Yale Law
Journal 816, in which Professor Noel wrote
(at p. 83S): "Any definite requirement that
the defect or the danger must be latent
seems to revert to the concept that a chattel
must be 'inherently' dangerous, and this
concept has been replaced under the modern
decisions, by the rule that the creation of
any unreasonable danger is enough to estab-.
lish negligence. Under the modern rule, even
though the absence of a particular safety
precaution is obvious, there ordinarily would
be a question for the jury as to whether or
not a failure to install the device creates an
unreasonable risk."
Ve conclude, therefore, that it was error
to nonsuit plaintiffs in their cause of action
based on the negligent design of the pay-
dozer. The issue should have gone to the
jury. Ve now discuss their cause of action
based on a strict liability concept.
California has pioneered in the develop-
ment and extension of the theory that
ma n u fac turer s a re str ictly liab le in to rt fo r
in ju r ie s to pe rso ns ca use d b y de fec ts in
th e ir p ro d uc ts. ( See E sc o la v. Coc a Co la
Bo ttlin g Co. ( 1 94 4) 2 4 Ca l. 2d 4 53, 4 61 -
46 8, 15 0 P. 2 d 4 3 6, c on cu rr in g op in io n o f
Tra yn or, J.) . E n ou r lan d mar k op in io n 1 475
in Greenman v. Yuba Power Products, Inc.
(1963) 59 Cal.2d 57, 62, 27 Cal.Rptr. 697,
700, 377 P.2d 897, 900, we held that "[a]
manufacturer is strictly liable in tort when
an article he places on the market, knowing
that it is to be used without inspection for
defects, proves to have a defect that causes
injury to a human being." In Vandermark
v. Ford Motor Co. (1964) 61 Calid 256, 37
Cal.Rptr. 896, 391 P.2d 168, we applied
such strict liability to retailers, and in
Elmore v. American Motors Corp. (1969)
supra, 70 Ca1.2d 578, 585-587, 75
Cal.Rptr. 652, 451 P.2d 84, we extended
protection beyond users and consumers of
defective products to bystanders within
"the risk of the maker's enterprise."
(11] Here the trial court held as a mat-
ter of law that the paydozer was not de-
fectively designed and that the doctrine of
strict liability was inapplicable. We cannot
agree. The Restatement Second of Torts,
section 402A succinctly recites the
standard for strict liability applicable to
manufacturers: "One who sells any product
in a defective condition unreasonably dan-
gerous to the user or consumer or to his
property is subject to liability for physical
harm thereby caused to the ultimate user
or consumer [or bystander]3 or to his
property, if (a) the seller is engaged in the
business of selling such a product, and (b) it
is expected to and does reach the user or
consumer without substantial change in the
condition in which it is sold." In the
instant action, plaintiffs contend that the
paydozer contained a fundamental defect
of design which made it unreasonably
dangerous for its intended use, in that the
operator could not see persons working
behind him within a rectangular area 48
feet by 20 feet.
Most reported cases in California and
other jurisdictions have applied strict liabil-
ity to products containing defects in their
manufacture; few have involved defects
in design. However, there is no rational
distinction between design and manufacture
in this context, since a product may be
equally defective and dangerous if its design
subjects protected persons to unreasonable risk
as if its manufacture does so. Indeed, in
Greenman v. Yuba Power Products, Inc.
(1963) supra, 59 Cal.2d 57, 64, 27 Cal.Rptr.
697, 701, 377 P.2d 897, 901, we held that
plaintiff could recover on a strict liability
theory if he proved "that he was injured
while using the Shopsmith in a way it was
intended to be used as a result of a defect
in design and manufacture * * *."
(Italics added.)
3. As noted above, since Elmore v. American
Motors Corp. (19(191 supra, 70 Cal. 2d
57S, 75 Cal.ltptr. 652, 451 P.2d 84,
California courts extend protection to by-
standers.
A recent California case expressly holds
that a product may be defective if it lacks
safety devices necessary to its reasonable
safety. In Garcia v. Halsett (1970) 3 Cal.
App.3d 319, 82 Cal.Rptr. 420, the plain-
tiff sued the owner of a launderette for
injuries sustained while using one of the
washing machines in the establishment.
Plaintiff waited se veral minutest fter the is s
machine had stopped its spin cycle before
opening the door to unload his clothing.
After unloading one handful, he inserted
his hand into the washer a second time and
the machine suddenly started spinning. His
arm became entangled in the clothing and
he sustained injuries. The evidence
indicated that the accident could have been
avoided by installation of a common two-
dollar micro switch which would have au-
tomatically shut off the electricity in the
machine when. the door was opened. The
trial court refused to instruct the jury on
strict liability. The Court of Appeal re-
versed, holding the evidence sufficient to
justify findings tliat the washing machine
was defective in its design because it
lacked a micro switch and that the owner
of the launderette, "in the same manner as
a manufacturer, retailer, or lessor," was
strictly liable in tort. (Id. at p. 326, 82
Cal.Rptr. at p. 423.)
Persuasive authorities in other jurisdic-
tions have also reached the conclusion that
products lacking safety devices may be
defective. In Wright v. Massey-Harris,
Incorporated (1966) 68 Ill.App.2d 70, 215
N.E.2d 465, defendant's motion to dismiss
was reversed on the ground that plaintiff
had stated a good cause of action in both
negligence and strict liability, based on
the design of the defendant's cornpicker.
"The present case involves a claimed
defect in design rather than a defect in
manufacture and we interpret Suvada
4
to mean that the strict liability imposed
4. Suvada v. White Motor Company (1965)
32 111.2d 612. 210 N.E.2d 1S2. Suvada,
like its Greenman eounterpnrt in Cali-
fornia. established the liability of sellers
of defective and unreasonably dangerous
products without privity of contract.
636 85 CALIFORNIA REPORTER 2 CaL3d 475
2 Ca1.3d 477 PIKE v. FRANK G. HOUGH COMPANY . 637
Cite as, Sup.. 85 CalStptr.
upon a manufacturer includes injuries
which arise from defects in design as well
as defects in manufacture. Whether the
design defect in the present case is of a
nature upon which liability can be imposed
involves the factual question of whether it
creates an unreasonably dangerous con-
dition, or, in other words, whether the
product in question has lived up to the re-
quired standard of safety." (Id. at p. 470.)
The defects alleged in the cornpicker were
that it lacked a shield over the area in
which ears of 'corn could jam in the chain
mechanism and a guard over the shucking
rollers from which ears of corn were
manually extracted. Thus, on the basis of a
case no broader in scope than Greenman,
the Illinois court applied strict liability to a
machine defective in design because it
lacked safety devices which would have
reduced the risk of harm. (Also see Illnicki
v. Montgomery• Ward Company (7th Cir.
1966) 371 F.2d 195; Williams v. Brown
Manufacturing Company (1%8) 93
111.App2d 334, 236 N.E.2d 125.) We adapt
a similar rule to this case. Whether the
paydozer was unreasonably dangerous due
to faulty design when it left the hands of
the manufacturer is clearly a question of
fact to be determined by the jury.
Furthermore, California cases provide
support by analogy for the proposition that
prOducts designed without necessary safety
ot devices may bound defective. In Canifax v.
Hercules Powder Co. (1965) 237 Cal.
App.2d 44, 53, 46 Cal.Rptr. 552, 558, it was
held that "a product, although faultlessly
made, may nevertheless be deemed 'defec-
tive' under the rule [in Restatement Second
of Torts, section 402A] and subject the
supplier thereof to strict liability if it is
unreasonably dangerous to place the
product in the hands of a user without a
suitable warning and the product is
supplied and no warning is given." (See
also Barth v. B. F. Goodrich Tire Co. (1968)
265 Cal. App.2d 228, 244-245, 71 Cal.Rptr.
306; Rest. 2d Torts, § 402A, corn. j, at p.
353.) No rationale has been suggested to
justify imposing strict liability with respect
to a faultlessly made product which is
unreasonably dangerous because it is
produced without safety warnings, while
refusing to impose strict liability with
respect to a product which is unreasonably
dangerous because it is produced without
safety devices.
[12] Of course, we do not decide whe-
ther the paydozer is in fact unreasonably
dangerous for its intended use, but only
that plaintiffs' evidence was sufficient to
support a jury verdict in their favor. A
jury could decide that an earth-moving
machine with a 48-foot by 20-foot rectan-
gular blind spot was dangerous "to an ex-
tent beyond that which would be contem-
plated by the ordinary consumer who
purchases it [or by a bystander], with the
ordinary knowledge common to the com-
munity as to its characteristics." (Rest. 2d
Torts, § 402A, corn. i, at p. 352.)
The judgment for Frank G. Hough
Company is reversed. The judgment is af-
firmed as to International Harvester
Company. Plaintiffs are to recover their
costs on appeal.
McCOMB, PETERS, TOBRINER,
BURKE and SULLIVAN, JJ., and PEEK,
J.,t assigned, concur.
2. Retired Associate Justice of the Supreme Court sitting under assignment by the Acting
Chairman of the Judicial Council.
CALIFORNIA REPORTER
2 Ca1.3d 663 VOLUME 117
simply attempted to convey concept that
product need not be free from all risk of
harm and that it may not be found defec-
tive simply because an accident has oc-
curred and, in context of entire instruction,
it was not confusing to jury.
Reversed.
1. Products Liability X75
In proving existence of product defect,
plaintiff is not required to establish that
defect made product unreasonably danger-
ous.
2. Appeal and Error <882(12)
Plaintiffs who requested instruction
directing jury to find whether defendant
sold its product in defective condition un -
reasonably dangerous to user or consumer
were not entitled to complain of instruction
given on strict liability theory requiring
that defect make product unreasonably
dangerous and unsafe for its intended use.
3. Appeal and Error <1064.1(1)
Generally, if it appears that improper
instruction was likely to mislead jury and
thus become factor in its verdict, it is
prejudicial and ground for reversal.
4. Appeal and Error <1064.1(8)
Where one instruction, relating to
products liability, erroneously imposed on
plaintiffs the burden of proving that de-
ceased oiler on construction project had
been unaware of defect in crane manufac-
tured by defendant and second instruction,
relating to assumption of risk, correctly
imposed on manufacturer burden of prov-
ing that deceased had been aware of defect
when he was struck by counterweight on
527 P.2d 353
12 Ca1.3d 663
_up dflosa Lee HENDERSON et al., Plaintiffs
and Appellants,
r .
HARNISCHFEGER CORPORATION,
Defendant and Respondent.
Sac. 8000.
Supreme Court of California.
In Bank_ Oet. 28,
1'174.
Wrongful death action against manu-
facturer of large earth-moving crane
brought by wife and children of construc-
tion project oiler killed when he was 'truck
by counterweight and crushed gainst base
of crane. The Superior Court, Yolo County,
James C. McDermott, J., entered judgment
on verdict for defendant and plaintiffs
appealed. The Supreme Court, Sullivan, J.,
held that where one instruction, relating to
products liability, erroneously imposed on
plaintiffs burden of proving that deceased
had been unaware of defect in crane and
second instruction, relating to assumption
of risk, correctly imposed on manufacturer
burden of proving that deceased had been
aware of defect it was impossible to
determine basis of verdict for defendant
and since inclusion of lack of awareness
could have given defendant advantage in
view of evidence of deceased's familiarity
with crane, error was prejudicial, but that
instruction on strict liability. to effect that
manufacturer is not required under law to
create and deliver its product so as to make
it accident proof,
117 Cal Rptr —1 1
117
CALIFORNIA
REPORTER 12 Ca1.3d 663
crane and crushed aganst its base, it was
impossible to determine basis of verdict for
defendant and, since inclusion of lack of
awareness could have given defendant ad-
vantage in view of evidence of deceased's
familiarity with crane, error was prejudi-
cial. West's Ann.Const. art. 6. § 13.
5. Products Liability C:=49
Issue of awareness of plaintiffs' dece-
dent of defect in crane at time he was
crushed represented only one of several el-
ements of defense of assumption of risk in
products liability action and finding of
awareness would not establish necessary
elements of voluntary and unreasonable en-
countering known danger.
6. Products Liability C=41l
In determining whether decedent acted
unreasonably in using crane manufactured
by defendant at time he was fatally in-
jured, fact that duties of decedent's em -
ployment required that he oil and grease
the crane could be considered by jury, in
products liability case.
7. Trial C=;343
General verdict implies finding in fa-
vor of prevailing party of every fact es-
sential to support of his action or defense.
8. Appeal and Error C=)928(l)
In determining whether instructions
given are correct, Supreme Court must as-
sume that jury might have believed evi-
dence upon which instruction favorable to
losing party was predicated and that, if
correct instruction had been given upon that
verdict, jury might have rendered verdict in
favor of losing party.
9. Products Liability C=96
Instruction on strict liability, to effect
that defendant manufacturer of product is
not required under law to create and deliv-
er its
product
so as to make it accident proof, simply
attempted to convey concept that product
need not be free from all risk of harm and
2
Andrew j. Smolich, Itertolani & Smolich,
Sacramento. P. M. Barceham Burton J.
Goldstein, Albert E. 'Levy, Ralph Golub,
Goldstein, Barceloux & Goldstein and M.
Reed Hunter, Chico, for plaintiffs and ap-
pellants.
P. Beach Kuhl, Sedgwick, Detert, Moran
& Arnold and David B. t'aynter, San Fran-
cisco, for defendant and respondent.
_tULLIVAN, Justice. Atsis
In this action for damages for wrongful
death, plaintiffs, who are the surviving
wife and children of Thomas Tackson Hen-
derson, appeal ;rom a judgment entered (in
a verdict in favor of defendant.
Decedent was employed as an oiler by
Continental-Heller Corporation on a con-
struction project at the University of Cab -
fornia at Davis. He was assigned to a
large earth-moving crane manufactured by
defendant 1 I arnisch f ege r Corporation,
which .was operated by Maynard, a Continental
employee. Decedent's duties were to keep the
crane properly oiled and greased, to move it from
one job to another and to assist the operator in its
safe and efficient use. The equipment consisted of
a cab containing the operator's controls, a boom
mounted on the body in front of the cab and a
counterweight to the rear of the cab designed to
give the crane stability when the boom was
extended. There was evidence that the boom and
its counterweight normally rotated without making
any noise.
Decedent was killed by the crane shortly
after he had signaled the operator that the
boom could be swung into a new po sition.
As the boom was rotating, the operator felt a
"thump" and immediately stopped the crane.
No one observed the accident but the record
establishes that dAsdent was ass.: struck by
the counterweight and crushed against the
base of the crane.'
that it may not be found defective simply
because an accident has occurred and, in
context of entire instruction
t. The reason for Ileve&nem presence in the
danger zone is not entirely (gear. The evi-
it was not confusing to jury in the particu -
lar case.
&nee suggests that he might have been urinat-
ing; the fly of hi>i trousers was open nod
12 Ca1.3d 668 HENDERSON v. HARNISCHFEGER CORPORATION 3
Cite as. Sup., it t•at.ltptr. I
Plaintiffs brought the present action
against Harnischfeger Corporation as the
manufacturer of the equipment on theories
of negligence and strict liability in tort.
They premised the latter theory on the
charge that the crane was defective in de-
sign in that it was impossible for the oper-
ator to have a full view to the rear while
operating the equipment. The case was
tried to a jury only on the theory of strict
liability.
Plaintiffs produced expert testimony at
trial in order to prove that the crane was
defective. Joseph Williams, a mechanical
engineer who had inspected the crane,
testified that the cab of the crane was de-
signed in such a manner as to completely
obstruct the view of the operator to the
rear in the area where the counterweight
swung. lie expressed the opinion that this
blind spot could he almost entirely elimi-
nated by installing a mirror on the side of
the cab: that, depending on the size and
shape of the mirror, it would give the op-
erator a clear field of vision to the coun-
terweight during its movement; that a
mirror could be effectively used by the op-
erator without interfering with his control
of the crane; and that its cost would not
exceed $125. In addition, he stated the
crane could lie equipped with a sounding
device which would warn others not to en-
ter the zone of danger during the opera-
tion of the crane.2
Such a device could lie
installed at a cost of $100 to $200. John
New, an experienced crane operator, who
had handled an identical crane, testified
that after nearly hitting a person with the
counterweight, he installed a mirror to
eliminate the blind spot in the rear. How-
ever, the mirror was required to be dis-
mantled each time the crane was moved to
a new site and, on one occasion when he
a tire on the rig Was observed to he wet. On
the other hand, the record supports the in.
ferenee that the decedent might have been
using :t cabinet—situated on the side of the
crane where the neehient ,s-eurred—in whieh
he kept his tools and equipment. After the
accident, the cabinet door was found open and
a valet. cop, apparently taken from the
cabinet. was found nearby.
failed to replace the mirror, an accident
remarkably similar to the present one oc-
curred. New expressed the opinion that the
accident would not have occurred had his
crane been equipped with the mirror.
Further, he believed that a crane operator
would be able to use a mirror for rear vision
and still devote sufficient attention to the
movement of the crane in front.
fendant introduced expert testimony to
the contrary. James Collins, a mechanical
engineer, while conceding that the in-
stallation of a mirror would enable the op-
erator to see to the rear, recommended
against such a measure. In his opinion it
would divert the attention of the operator
from the movement of the boom, which he
thought was fie major hazard to the oper-
ator and to others. lie concluded that a
sounding device would be ineffective since
the danger of entering the area of the arc
of the counterweight would be obvious to
anyone.
Defendant also presented evidence on its
defense of assumption of risk. Churchill
Brunley, who was supervising the operation
of the crane on the day of the accident,
described decedent as "alert" and "in-
telligent." lie testified that upon leaving the
area Mimi!: 10 or 15 minutes before the
accident occurred, he warned decedent
about the danger of being struck by the
counterweight and instructed the latter to
keep other persons out of the danger Lone.
Additionally, the record reveals that the
decedent had been employed as an oiler for
four years and was familiar with the oper-
ation of the crane.
In instructing the jury on the theory of
strict liability in tort, the trial court gave a
modified version of former BAP No. 9.01
(Cal.Jury Instrs.Civ. (5th rev.ed.1969)).3
2. lteeause of limited visibility to the rear. the
crane came equipped with a similar device
which sounded a warning when the carriage of
the crane was moved in reverse.
3. The instruction stated as follows: "The
defendant man torturer of a product is not
required under the laic so to create and delircr
its product nv to make it accident proof; how:
ever, it is subject to liability to the plaintiffs
4 117 CALIFORNIA REPORTER 12 Ca1
Under this
instruction, the
court informed the iury that "[tJhe
defendant manufacturer of a product is not
required under the law so to create and
deliver its product as to make it accident
proof . . . . " The same instruction also told
the jury that in o rder to establish
defendant's liability, plaintiffs had the
burden of proving, among other things,
that the decedent was "unaware of the
claimed defect" and that the "defect, if it
existed, made C!ie product unreasonably
dangerous and unsafe for its
for any injury suffered by them if Ihr plain-
tiffs establish bp a )11(71071d C ranee of the cri-
denee all of the facts necessary to prove each
of the following conditions:
"First : That the defendant nlaved the prod-
uct in question on the market, and the de-
fendant knew, or in the exercise of reasonable
care should have known, that the particular
product, without substantial change, would be
used in the way and for the general purpose
for which it was designed and intended;
"See01111 : That the product was defective
iu design or manufacture at the time it was
!llama on the market and delivered:
"Third: That the deceased was unaware of the
claimed defect;
"Fourth: That the claimed defect was a
proximate Noise of any such injury or death
occurring while the product was being used in
the way and for the general purpose for which
it was designed and intended, and in a man-
ner which was reasonably foreseeable by the
manufacturer at the time the product was
!dared on the market ;
"and Fifth: 77tat the defect, if it existed.
*took the rrifduct unrefixi• hatily ilan iermur nail
unsafe for its intended use." (flakes added.)
The instruction is no longer rec4immended
by the Committee on ItA.11. (11.31 (cum.
pocket 14. 1973) it. 43.) The sole instruct"
pertaining to Ilse. products liability is now
contained in 1:..T1 No. 9.1)Ito
Pocket pt. 1973) p. 37.) Yoder it. the manu-
facturer or retailer must be found liable "for
injuries proximately caused by a defect in the
article which existed when the article left
possession of the ilefendatitisl, provided that
the injury resulted from a use of the article
that Wag reasonably foreseeable by the
defendant[e]."
4. The instruction stated: "If the decedent.
Thomas Jackson Henderson. it ........`11 the risk
(of harm) from (wing struck by the crane
plaintiffs may not newer damages for his death
resulting Ilierefrom.
"In order for said decedent to have assumed
such risk, he must 'MVP had netted k........ -ledge
of the particular danger of 'wing in the place
intended use." We have set forth the per -
tinent language in italics. (See f n. 3.
ante.)
In accordance with defendant's assertion
of the defense of assumption of the risk,
the court also gave at defendant's request
IIAJI No. -1.30 in a modified form' :t the
same time, at the request of plaintiffs. the
court direCted the jury that it must
consider the "necessities" of the decedeilt's
employment in evaluating his conduct.
( I I No. 3.40.) 5
where lie W31,4 when struck by the eranc .
and an appreciation of the risk iirkol% ell and
the magnitude thereof, and must thereafter
have voluntarily assumed such risk.
"For a person to act voluntarily he must have
freedom of11`.1 I
11.11.. f teed•tti
choice trust 1' .... ` fr...........•int unistam es that pr„
vide him a reasonable opportunity. w i t tt
violating any legal or moral ditty, to safely
refuse to expose I ........ self to the danger in ipics
thin.
"Iii determining whether said decislent as
soma! such risk, you may .outsider his ma-
turity. intelligenee.........experienee and eapacii.
along with all the oth'er surrounding circion•
stalwes as shown by the evidence."
''This is the doctrine of assumption of
mentioned in the arguments. The burden of
proof is upon the defendant. and that is the
harden of proving by the e‘idettee all facts
necessary to establish that assumption as I
Pia VC already defined it for you.-
A special assumption of risk instruction in
produrts liability cases is .....................• protided iu
No. 9.11'.!.. It states in reel Matt part :
"Itt order for the plaintiff to !nue ass.................•1
such risk, he must have laid actual knowledge of
the defect and an appreciation of the risk
or danger ilIVI ved in using the V.• q.ro,.!-
r t e t
IogetlaT with an tunlerstandnig of the
magnitude Of such risk and most thereafterhave voluntarily and unri- oximeibly
to use the produet to his injury.'' Iltali..
added.) The italicized word adds an element not
present in it.A.11 No. 4.:14), namely, that the
choice of the injured party to encounter a ktmwn
risk lw unreasonable.
5.. The instruetion stated: "When a ner,
“nt's
lawful employment requires that he work in a
dangerous location or a place that involves un-
usual possibilities of injury, or requires that
in the line of his duly he take risks which
ordinarily a reasonably prudent person would
avoid, the towessitiem of such a sitimt ............... in
solar oar 11111 17.
1114 the cam'.....I I
taat hr 'a u
take for his own safety, lesseu the ........................
of emit ion requirea of hint by law in the exercise
of ordinary care."
[2] Since on the point covered by our
later decision in Cronin, plaintiffs requested
a substantially similar instruction (see fn. 6,
ante), they may not now complain of the
corresponding portion of the instruction
given by the court. (6 Vitkin, Cal. Procedure
(2d ed. 1971) p. 4258; see and compare
Luque v. McLean, supra, 8 Cal.3d at p. 146,
104 Cal.Rptr. 443, 501 P.2(1 1163.)
However, they are not precluded from urging
error based on our ruling in Layne.
[3] The precise question, therefore,
which we must decide is whether this error
requires a reversal of the judgment. Gen-
erally speaking if it appears that error in
giving an improper instruction was likely
to mislead the jury and thus to become a
factor in its verdict, it is prejudicial and
ground for reversal. (4 Witkin, Cal.Pro-
cedure (2d ed. 1971) pp. 3056-3057.) To
6. rtnintiffs requested. but the court refused.
an instruction directing the jury to finch
whether defendant sold its product "in a de-
fective vo mlitio n unreasonab ly dan gerous to
user or ..on.............r (Italics 111111441. I
5
put it another
way, "I w1here it seems probable that the
jury's verdict may have been based on the
erroneous instruction prejudice appears and
this court 'should not speculate upon the basis
of the verdict.'" ( Robinson v. Cable (1961)
55 Cal. 2d 425. 428, 11 Cal.Rptr. 377, 378,
359 P.2d 929, 930; see also Lucille v.
McLean, supra, S Ca1.3d 136, 147, 104
Cal.Rptr. 443, 54(1 P.2d 1163: Vistica v.
Presbyterian Hospital (1967) 67 Cal2d 465,
471, 62 Cal. Rptr. 577, 432 P.20 193;
()ettinger v. Stewart (1944) 24 Cal2d 133,
140, 148 P. 2d 19.) As we observed in
Butigan v. Yellow Cab Co. (1958) 4')
Ca1.2(1 652, 660-661, 320 P.2d SOO, 505,
"The determination whether, in a specific
instance, the probable effect of the
instruction has been to mislead the jury and
whether the error has been prejudicial so as
to require reversal depends on all the
circumstances of the case, including the
evidence and the other instructionstiven. No
precise formula can be drawn." (Sec also
Bridgman v. Safeway Stores, Inc. (196(1) 53
Ca.1.2d 443, 450, 2 Cal.Rptr. 146, 348 P.2d
696; Alarid v. Vanier (1958) 50 Cal.2d 617,
625, 327 P.2d 897.)
Mindful of these principles, we proceed
to determine the probable effect of the in -
struction placing on plaintiff the burden of
proving "that the deceased was unaware of
the claimed defect" (see fn. 3, ante), which
instruction, as we have already pointed out,
was declared erroneous by us in Luque The
essence of our holding there was that the
instruction was improper since it told the
jury in effect that the plaintiff had the
burden of proving that he had not assumed
the risk of the claimed defect. The almost
identical language in the case at bench
conveyed the same direction in respect to
the decedent's conduct. But the court also
instructed the jury as to the defense of as-
sumption of risk, informing them properly
that the burden of proving such defense
was on defendant.
7. Plaintiffs requ ested au instru ctio n o mitting
this element as a part o f their a ffirmative
case bu t the instru ctio n was refu sed.
12 CaL3d 671 HENDERSON v. HARNISCHFEGER CORPORATION
Cite nm. Sop.. 117 'n1.1tpt r. I
The jury by a vote of 10 to 2 returned a
general verdict in favor of I larnisch feger
and judgment was entered
This appeal followed.
apt j11.] It is clear, and the parties agree, that
the court's instruction on strict liability in
tort (see fn. 3, ante) is erroneous in the
light of subsequent opinions of this court.
After the trial in this case, we rendered our
decisions in Cronin v. J. B. E. Olson Corp.
(1972) S Cal.3d 121. 104 Cal. Rptr. 433,
501 P.2d 1153 and Luque v. McLean
(1972) S Cal.3d 136, 104 Cal.Rptr. 443,
501 P2d 1163. Cronin held (8 Ca1.3d at
pp. 134-135, 104 Cal.Rptr. 433, 501 P.2d
1153) that in proving the existence of a
product defect, the plaintiff is not required
to establish that the defect made the prod -
uct "unreasonably dangerous."
6
Luque held
(8 Ca1.3d at p. 146, 104 Cal.Rptr. 443, 501
P.2d 1163) that in a products liability
action the plaintiff does not have the bur-
den of proving that he was unaware of the
defect causing the injury::
accordingly.
.ijaajdorm-rnif;iamiorlarigam " JcaniannaSsait
6 117 CALIFORNIA REPORTER 12 Ca1.3d 671
[41 It is dear at once that the two in-
structions are contradictory and irreconcil-
able: The first, purporting to set forth the
ingredients of products liability im-
pruperfy told the jury that plaintiffs had
the burden of proving that the deceased
was unaware (i. c., that he was not aware) of
the claimed defect; the second, setting
forth the essentials of assumption of risk,
told the jury that defendant had the burden
of proving that the deceased was aware of
such defect. It is impossible to determine
whether the jury returned a verdict for de-
fendant because they found that plaintiffs
had failed to prove that the deceased was
not aware of the claimed defect or
because they found that defendant had
proved he was aware of it.
[s.s] It is also apparent that inclusion of
the element of lack of awareness in
plaintiffs' case could have given defendant
the advantage of a less onerous defense to
Wit. There was evidence that the deem:lent
was familiar with the working of the crane
and that, additionally, he had ham warned
of the dangerous condition remitting from
the operator's obstructed view to the rear.
Thus the verdict for defendant could have
been based simply on a
a. lbe evidence in the present case tending to
aataailish a tIefeet in design was similar in
army respeets to the facts in Pike v. Frank
S pouch ro. (197411 2 ra1.11 41Z, S.-. Cal.
Rate. 4b7 1•.2d 129. although the hitter
was haws! on negligence rather than strict
railbilty in tort. In Pike plaintiffs' decedent vas
sittwek by a large pnyllor.er while the atmeliiae
was harking up. Plaintiff. in a mainand death
action. presented evidence to aloof that the
design of the mnehine obstatmeted the view of
the operator to the rear ft:a athataatial
distance and that this deflationary mould have
been corrected 1w installadam WE rearview
mirrors. Based on this evidame.>K hehl that
whether the prodnet was teTipetiflp 4Iesigtu1
was a question of fart sr die jury and therefore
reversed a nananit In fats, of defendant. (See
also Zabora v.
nmemittehroare Corp. (71k 1116.4) 404 F.
t elannection with the defense of assumption
me tint saisertml by defendant. plaintiffs
canasta that evidence on that issue was MO
inissibanatia1 that it was error to submit it
to Oa jun. Ilowcirr. we think that the evi-
finding that plaintiffs had not sustained
their burden in proving that the decedent
was unaware of the defect. I lad the jury
made such a finding, they would have ex-
onerated defendant manufacturer from lia-
bility even if they also believed that the
crane was defective in design.8 Oajourse,
the issue of awareness of the defect repre-
sents only one of several elements found in
the defense of assumption of risk in a
products liability action.9 At the most. it
includes the elements of knowledge and ap-
preciation of the risk. Luque demonstrates
that more is required; we stated there that
" '[t]he only form of plaintiff's negligence
that is a defense to strict liability is that
which consists in voluntarily and unreason-
ably proceeding to encounter a kn milt do n -
ger, more commonly referred to as assump-
tion of risk. For such a defense to arise, the
user or consumer must become aware of the
defect and danger and still proceed
unreasonably to make use of the product.'
(Italics added.) [Citations.]" (Luque v.
McLean, supra, S Ca1.3d at p. 145, 104
Cal.Rptr. at p. 449, 501 P.2d at p. 1169.) to
The issue of awareness included neither the
element of voluntariness nor the element of
reasonableness." Thus, apart from
derive n-biel we have describisl raised issues
of fact Oil whether the deeislent ass .............A tile
risk of harm in the prod net manufactured by
defendant.
10. The description in Latrine of the type of
plaintiff's conduct that will fon-dose liability
in a products liability action relies on cinn-
meat -IC section 4412A of the Ili-statement
Second of Torts. The romment indicates that
the defense it deseribes is consistent with
the role applied to strict liability eases
generally. (See Rest.241 Torts. §§ 515, 524:
Fleming. Assumption of Risk: Unhappy
Reincarnation (19681 7t Yale Ia. 19.1., fn. 4:
Prosser. Law of Torts (4th ed. 1471) pp, 522-
524. 670-671.1
II It will be reenlled that the court rave an
instruction to the jury that the "necessities" of
decedent's employment may "lessen the
.............. of efigitimt required of him hy
(Italics tabled; Mee fn. 5• an fc.1 One rase has
suggested thnt the requirements imposed on
an employee in working with n dangerous
product may lie considered in iletermining
whether the risk was enhatetarily assumed by
Ilse injured employee. (nhnna. v. SrrV
HENDERSON T. HARNISCHFEGER CORPORATION 7
Cita as. tiny_ 117 Cal.npt r.
ed of upholding a general verdict. These
latter situations deal basically with the
prolikni of the sufficiency of evidence to
uphold a general verdict. They are
grounded on the settled rule that a general
verdict implies a finding in favor of the
prevailing party of every fact essential to
the support of his action or defense (Price
v. Bekins Van & Storage Co. (1918) 179
Cal. 326, 32s, 176 P. 452; Tremble v. Tu-
man (1917) 175 Cal. 696, 698, 167 P. 142;
4 Vitkin, Cal. Procedure, op. cit., p. 3072).
It has therefore been said that "[w]here
there are several counts or causes of action,
a general verdict will stand if the evidence
supports it on any one sufficient count." (4
Witkin, Cal. Procedure, op. eif., p. 3078,
original italics.) lioth this court and the
Courts of Appeal have in appropriate
instances applied these rules. (See
Gillespie v. Rawlings, (1957) 49 Cal. 2d
359, 369, 317 P.2d 601 ; l'osz v. Mucha
(1962) 209 Cal.App.2d 324, 335-336, 25
Cal.Rptr. 896; Rather v. City & County of
San Francisco (1947) 81 Cal.App.2d
625,636, 184 P.2d 727.)
[8] But the giving of an imprope r in -
stru ction (a s in this matter) o r the refu sal
to give a prope r inst ruction pre sents a dif -
ferent situation on review. What this df . 7i
cou rt said 50 yea rs ago in O'Me ara v.
Swortfi gue r (1923) 191 Cal. 12, 15, 214 P.
975, 976, is here germane: "It is t rue that in
determining whether or not a verdict is
suppo rte d by the eviden ce, we mu st assume
that the jury acce pte d the view mo st fa -
vo ra ble to the respon dent. Howe ve r, in
determining whether or not the inst ruc tions
given a re co rrect, we must assu me that the
jury might have believe d the cvi -
Nlaeltine t'otnintny (N.1 IP:Ark:1971i .1=9 F.
Stipp. 3s1.1 It is dear. however. drat
the amount of ears required of 1 Ieee4ratt wv.tMnot
he relevant to an ordinary eatitritottiory
negligence defense sill.,' sails a ilefewse is Ne.st
a bar to recovery in a wrier habilis-Iv MI lea..
0 *Mille V. NI,•Leati. XNP1.41. S p.
145. 104 calltptr. 443. 501 1'.31 TTtitt Neither
is it normally relevant to a .11rietras of
assumpt• of risk, which. if estald'eaArd. twin
defeat liability regardless- of the fart that the
injured party may have acted, with absie
rare. (Austin v. Riverside Portland Cement
Co. (191-ii 44 Cal.'2..1 '235. ..2N2 l'.2d 69.)
However. the instruction has sonic hearing
on the defense asserted here. As we have
explained. the defense requires defendant to
prove, among oilier things, that the deeedent
en.rwntererl the defeeiive produel voluntarily
and oneramonabl y. Thum the neeesNiites of the
deeedell CS employment may lie isinsidered by
the jury in deriding whether he proeeellts1
unreaponabiy in wing the product.
12 eaL3d 674
the fact that plaintiffs were improperly
given the burden of proving that decedent
was not aware of the defect when the bur-
ien of proof should have been placed on
_L defendant to prove that the decedent-us
aware, it is likely that the jury's verdict
may have been based on what was, in ef-
fect, a partial defense.
NVe cannot assume that the jury ignored
the first instruction and based its verdict
solely on the second. "The prejudicial ef-
fect of a misstatement of an important
principle of law cannot easily be cretin:tune
by another declaration contradicting it_
The jury are bound (and so instructed). to
accept the court's instructions as correct
statements of the law. . . They are
likely to be confused and misled by the
conflicting statements, and it is not easy to
determine which charge controlled their
determination." (4 Witkin, Cal. Procedure
(2d ctl. 1071) p. 3055; original italics-) As
we observed in the Robinson, Vistica and
Luque cases cited above, we should nut
speculate on the basis of the verdict..
Defendant contends that the erroneous
instruction requiring plaintiff to prove that
the deceased was unaware of the claimed
defect could not have been prejudicial be-
cause the jury had ample evidence to reach
the same finding based on the assumption
of the risk instruction. Defendant cites no
authority supporting this claim and indeed
provides us with no analysis of the issue of
prejudice apart from the bare statement of
the argument. We reject the contention as
being misconceived and devoid of merit.
[7] We believe it is misconceived be -
cause it savors of arguments made in an-
other context wherein the issue is present-
F
$ 117 CALIFORNIA REPORTER 12 Ca1.3d 674
dente upon which the instruction favorable
to the losing party was predicated, and
that a the correct instruction had been
given Igen that subject the jury might have
rendered a verdict in favor of the losing par-
ty." (See also Clement v. State Reclamation
Board (1950) 35 Ca12d 628, 6-13-&4,
P2d 897; Oettinger v. Stewart, supra,
Z4 Ca1.241 133, 141), 148 P.2d 19.) Our
problem in the case at bench is one of the
latter kind—involving not the sufficiency of
evidence, but rather the effect on the jeta7
of an improper instruction. NVe are eat
dealing with separate and independent
counts or causes of action and the suffi-
ciency of evidence on any one of them.
Nor are we dealing even with separate is-
sues, so independent in nature and isolated
in content as to preclude any interrelationship
between them. As we have sirorn, the
two issues of strict liability on the one
hand and assumption of risk on the nalher
are inherently conjoined by the facts of the
accident. More importantly the
"'awareness" language of the instruction on
the strict liability issue amounts to a direc-
6iss on assumption of risk and thus spills
over into that issue. Or to put it another
way, the error of the instruction disap-
posood in Littruc cannot be isolated and
confined to the first issue but infects and
taints the issue of assumption of risk. The
fonnula which defendant's argument suggests is
nut applicable and certainly will sot permit
us to shortcut our constitutional duty to
examine the entire record so as to
deftennine the effect of the challenged in-
struction. (See Warner Constr. Corp. v.
Coy of Los Angeles (1970) 2 Ca1.3d 285.
Mt in. 18, 35 Cal.Rptr. 444, 466 P.2d 996.)
EL Defendant slireetit our attention to the
=we Ai similar -am-Went-pr oof- language in
following rases although not in eminee Om
with time approval or disapproval of in-
allonetions t'ikt r. Frank I lough Co..
ampols„ 2 C' .1.1 4111. 470. 85 01;11.
467 P.24 =9 (quoting from Vartis v. Rare° Mfg. Cs..
(VIG2) '24t1 ral.App.2d 2-10, •25-s, '2.12 CaLKpor.
7:17 : Thompeam v. l'aeknge
2111104111ftevr 11.99. (111711 22 14.s.
/119 ralLftiotr. '2%1 (quoting from Pike). It taw
refers to similar language in Thomas
From our examination of the entire record
we conclude that the error was prejudicial
and resulted in a miscarriage of justice. and
that the judgment should be reversed
(Cal.Const., art. 'I, § 13; see People v.
Watson (1956) 46 Ca1.2d 818, 836, 2°' l'.2d
243.)
[91 Plaintiffs also contend that the court
committed error in its instruction on strict
liability (see fn. 3, ante) in another respect,
that is by stating to the jury that the
"defendant manufacturer of a product is not
required under the law so to create and
deliver its product as to make it accident
proof." They do not take the position
that the above language is a misstatement
of substantive law but assert that it is
"misleading, confusing and prejudicial":
plaintiffs rely on Itutigan v. Yellow Cal)
Co., supra, 49 Ca1.2d 652. 320 P2d 500.
Defendant, on the other hand, seems to have
failed to meet the contention head-on, being
content with the argument that the
instruction is a "correct statement of appli-
cable law." 12
As previously indicated the challenged
instruction is the introductory language of
former 11.AJI No. 9.01 (see fn. 3, ante).
We note that former No. 9.01 has been
withdrawn by the Committee on ItAll and
no longer appears among the currently rec-
ommended instructions for products liabili-
ty cases. Despite this, and notwithstanding
our conclusion that the judgment must be
otherwise reversed for the reasons just
given, we feel obliged to discuss this issue
for the guidance of the court on retrial in
the event this or similar language is again
requested.
v. General Motors Corp. (1971)1 13
('al.App. 3d 41 4.4 01 Cal.Rptr. 301 where
in the eourse of examining an instruction
on defective design the court stated that a
manufacturer is not required to produce an
aecident-free or fool-proof machine. Final-
ly reference is made to our tit ...................• • in
Cronin v. J. It. E. Olson Corp.. aspen, q ral.311
121. 132-13-1. 101 Valltptr. -133. 7.111 1'.2.1 117,3.
wherein we eccoeniZed that the manufacturer
was not to he treated us an insurer of its
produets.
' '
12 -Ca1.3d 641 PEOPLE
cu.. as. Sup.,
At the outset we must say something
about the connotation of the words -
acci-
dent proof" which are the focus of plain -
tiff's challenge. Generally speaking, they
import that the product is incapable of
having accidents " or not prone " to having
them, or is or will be free of accidents."
This connotation of course implies that the
manufacturer is not guaranteeing or insur-
ing that the product will he free of
accidents."
Butigan was an action for damages for
personal injuries sustained by a passenger
in a taxicab as a result of its collision with
another vehicle. The court, at defendant's
request, gave the so-called unavoidable ac-
cident instruction, which stated in part: "'In
law we recognize what is termed an
unavoidable or inevitable accident. These
terms du nut mean literally that it was not
possible for such an accident to be avoided.
They simply denote an accident that oc-
curred . without having been proximately
jj.76 causetrl2y negligence. . * . . '" (49 Cal.
2d at p. (57, 32.0 l'.2d at p. 503.) We de-
cided that the instruction, in addition to
being unnecessary, was confusing because
the jury "may get the impression that una-
voidability is an issue to be decided and
that, if proved, it constitutes a separate
ground of nonliability of the defendant.
Thus they may be misled as to the proper
Manner of determining liability, that is,
solely on the basis of negligence and proxi-
mate causation." (hi. at p. 660, 320 P.2d at
p. 305.)
The "accident-proof" language, here
challenged, although not a model of clarity,
simply attempts to convey the concept that
a product need not be free from all risk of
harm; in other words, it expresses the view
that a product need not be found defective
simply because an accident has occurred.
Following the expression of that
v. HITCH 9
IF; cal. t:ptr.II
concept, the instruction directs the atten-
tion of the jury to the elements which must
Ire proved in a products liability action. In
the context of the entire institution, we do
not believe that the "accident-proof" lan-
guage would be regarded as a separate basis
of nonliability; in fact, a product defect
may or may not exist even though the
product fails to be accident proof. We re-
gard the "accident-proof" language as an
attempt to delineate the outer limits of le-
gal responsibility in a products liability ac-
tion. Unlike the so-called unavoidable ac-
cident instruction in Bufiyan, it does not
appear to us that the challenged language,
in the context of the entire instruction,
would be confusing to a jury in this partic-
ular case. We, of course, cannot and do not
assess its potential for confusion in the
context of anothelr instruction.
The judgment is reversed.
WRIGH T, C . J ., and McCO MI3, TO -
13R1 LR, BURKE, and CLARK,
J J., concur.
13. -1'neif." %leen used as an adjective means .
"firm or sticeessful it: reNiNting ear repelling
. . . impreettable--often used in cont-
inual*.......................... (Intrglar-proof winbws) flootnio-
Ionia I . . . . (Webster's Third
New.
Internat. Intl. (Itar.3 ed.) p. 1517.1
14. :4c for example "accideut-prone-
as meaning
"having personality traits that predia117
Cal Rot, —111/2
pose to accident ............................................ " (Weleiter'N,
op. efts, p. 11.1
1 5 . S e e . T ho ma s v. G e ne ra l M o to rs C o r p . ,
supra. 1:: ea:App.:141 Sl, SS, Cal.limr.
301, sited in fn. 12, ante.
1 6 . See re fe re nce to Cro nin in fn. 12, a nte.
V, _______
0 star Mint SYSTM
r
527 P.2d 361
12 CaI.3d 641
_Line PEOPLE, Plaintiff and Appellant,
v .
Warner Herbert HITCH, Defendant
and Respondent.
Cr. 16915.
Supreme Court of Califontia,
In Rank.
Oat. 21, 1974.
In a prosecution for driving a motor
vehicle while under the influence of intoxi-
cating liquor, it appeared that a breath -
alyzer test ampoule and its contents and a
reference ampoule had been intentionally

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Learn details of pike v hough case with lewis barbe

  • 1. had obtained $5,000 in cash and the return of his personal promissory notes for 5-4000 and $3,000, respectively, by giving his eyed- $10,200 promissory note, which peti- tiffer had purportedly executed with a co- maker, but that petitioner had wrongfully affixed the signature of another to the note as a comaker, without such person's knowledge or authorization. In the second matter, the Board of Governors found that on March 10, 1939, petitioner had receired a $2,600 check from his client, to be retained by petitioner as trustee and used in connection with the purchase of certain real property by the client. Petitioner deposited the proceeds of the check in his trust account on March 10, 1959, but immediately withdrew $2,000 and misappropriated it. The real estate transaction was completed in March 1959 except for payment of the funds. On March 27, 1959, petitioner on behalf of his client, delivered _a $3,441 check to the title company, drawn on his trust account; but the check was no returned umaid for insufficient funds. In '4 " spite of repeated requests by the title com- pany for payment to complete the transac- tion, petitioner did not make full payment 1 July 21, 1959, almost four months la- Under the circumstances, it will be seen that petitioner was following a pat- tern which he had previously established and for which he had previously been dis- ciplined. [3] Petitioner's action in the present matter is sufficient to warrant the discipline recommended by the disciplinary board even without consideration of his prior record. His prior record, however, may properly be considered in determining the appropriate discipline. (Eschwig v. State Bar, 1 CaL3d 8, 18-19, SI CaLRptr. 352, 459 P.2d 904.) In Bruns v. State Bar, 18 Ca1.2d 667, 673, 117 P.2d 327, 334. a disbarment matter, this court stated: 'Although ten years have elapsed since the previous disciplinary proceedings against petitioner * * * it is apparent that the discipline then administered did not succeed in imparting to him an understanding of the duties of an attorney to his clients and to the public." Under the circumstances, further disci- pline is warranted, and the recommended discipline is lenient in view of the attitude shown by petitioner. It is ordered that petitioner be suspended from the practice of law for a period of five years on conditions of probation, including actual suspension during the first two years, effective 30 days from the filing of this opinion. 467 P.2d 229 2 Ca1.3d 465 jilobert W. PIKE, a Minor, etc., at al., 1465 Plaintiffs and Appellants, v. FRANK G. HOUGH COMPANY et al., Defendants and Respondents. Sac. 7851. Supreme Court of California, In Bank. April 17, 1970. Wrongful death action against manu- facturer of paydozer which struck and killed employee. The Superior Court, Butte County, Vernon Stoll, J.,1 granted defen- dants' motion for nonsuit and appeal was taken. The Supreme Court, Mosk, Acting C. J., held that evidence on motion for non-suit in wrongful death action against manu- facturer of paydozer which struck decedent while it was backing up warranted jury's conclusion that manufacturer should have been aware that machine's structural design made it impossible for operator to see man standing anywhere between one and 43 feet behind machine and that manufacturer who failed to correct such deficiency with rearview mirrors, or other comparable de- vice, violated duty to produce product rea- 1. by Chair:eau of Judicial Council. lUsi3d i65 PIKE v :FRANK G. HOUGH COMPANY Cite sus. Sup.. 83 CaLRptr. a29 62 9
  • 2. 630 85 CALIFORNIA REPORTER 2 CALM 465 sonably safe for its intended use. The Court further held that doctrine of strict liability may be applicable to manufacturer of paydozer which was designed to go forward and backward but had blind spot so that operator could not see six foot tall man standing one foot to 48 feet behind machine.  Reversed, Opinion, 80 Cal.Rptr. 501, vacated. 1. Appeal and Error C=z866(1) Issue on appeal from grant of defen- dant's motion for nonsuit in wrongful death action against manufacturer of paydozer was whether evidence presented by plain- tiffs, viewed favorably to their cause, was sufficient to support finding that manufac- turer was liable to plaintiffs for negligently designing paydozer or that manufacturer was strictly liable for defects in paydozer causing decedent's death. 2. Negligence C=, 27 Manufacturer must use reasonable care to so design his product as to make it not accident-proof but safe for use for which it is intended. 3. Negligence C=327 "Reasonable' care" in designing machine varies with facts of each case but involves balancing of likelihood of harm to be expected from machine with given design and gravity of harm if it happens against burden of precaution which would be effective to avoid harm. 4. Automobiles C=016 Evidence on motion for nonsuit in wrongful death action against manufacturer of paydozer which struck decedent while it was backing up warranted jury's conclusion that manufacturer should have been aware that machine's structural design made it impossible for operator to see man standing anywhere between one and -18 feet behind machine and that manufacturer who failed to correct such deficiency with rearview mirrors, or other comparable device, violated duty to produce product reasonably safe for its intended use. 5. Automobiles C=.16 Danger of dump truck spotter being struck by paydozer used to compact earth was not such a patent peril that paydozer manufacturer had no duty to install safety devices to protect against obvious danger. 6. Negligence C:527 Obviousness of peril is relevant to manufacturer's defenses, not to issue of manufacturer's duty. 7. Negligence C=.66(2) If bystander does not exercise due care to protect himself from evident peril, he may be contributorily negligent. 8. Negligence e=1 .136(26) Issue of contributory negligence is normally for jury. 9. Automobiles C=, 16 Evidence on motion for nonsuit in wrongful death action against manufacturer of paydozer which, while backing up, struck and killed dump truck spotter and which was designed in such way that operator could not see six foot tall man standing one foot to 48 feet behind paydozer was insuf- ficient to establish decedent's contributory negligence as matter of law. 10. Negligence 0=, 27 Obviousness of peril does not preclude liability on part of manufacturer which negligently designed machine. 11. Automobiles C=.16 Doctrine of strict liability may be ap- plicable to manufacturer of paydozer which was designed to go forward and backward but had blind spot so that operator could not see six foot tall man standing one foot to 48 feet behind machine. 12. Automobiles e=16 Jury could decide that earth moving machine with 48-foot by 20-foot rectangular blind spot was dangerous to extent beyond that which would be contemplated by ordi- nary consumer who purchases it, or by a bystander, with ordinary knowledge com- mon to community as to its characteristics.
  • 3. 2 CaL3d 469 PIKE v. FRANK G. HOUGH COMPANY 631 Cite as. Sup., 85 Cai. Rpm 029 P. M. Barceloux, Burton J. Goldstein, Al- case, defendant moved for a nonsuit which bert E. Levy, Ralph Golub and Goldstein, was granted.1 Plaintiffs appeal. Barceloux & Goldstein, San Francisco, for (I] As we have consistently pointed out plaintiffs and appellants, a "nonsuit in a jury case or a directed ver- Edward I. Pollock, Los Angeles, Robert diet may be granted only when disregarding E. Cartwright, San Francisco, Theodore A. conflicting evidenc:e, giving to the plaintiffs' Horn, Los Angeles, Marvin E. Lewis, San evidence all the value to which it is legally Francisco, William H. Lally, Sacramento, entitled, and indulging every legitimate in- Ned Good and Leonard Sacks, Los Angeles, ference which may be drawn from the ev- as arnici curiae on behalf of plaintiffs and idence in plaintiffs' favor, it can be said appellants. that there is no evidence to support a jury verdict in their favor." (Elmore v. Amer-Rich, Fuidge, Dawson, Marsh & Morris ican Motors Corp. (1969) 70 Ca1.2d 578, and Dennis C. Noonan, Marysville, for de- 583, 75 Cal.Rptr. 652, 655, 451 P.2d 84, 87.) fendants and respondents. Thus, the issue before us in this appeal is whether the evidence presented by plait- IL 1 1 0 S X , Ac t in g C h ie f Ju st ic e . t if f s, v ie w e d fa vo r a b ly t o t h e ir c a u se , w a s su f f ic ie n t t o s u p p o r t a ju r y ve r d ic t f in d in g O n J u ly 1 5 , 1 9 6 4 , a t 3 :1 0 a . m. , R o b e r t th a t d e fe n d a n t w a s lia b le t o p la in t if f s fo r P ik e w a s k il le d w h e n h e w a s s tr u c k b y a n e g li g e n t ly d e s ig n in g th e p a y d o z e r o r t h a t H o u g h M o d e l D - 5 0 0 P a y d o z e r , w h ic h w a s d e fe n d a n t w a s s tr ic t ly lia b le to p l a in t if f s be i n g u se d in th e c o n s tr u c t io n o f th e O r o - f o r d e fe c ts in th e p a y d o z e r c a u s in g d e c e v il le D a m. P ik e w a s w o r k in g t h e n ig h t d e n t ' s d e a t h . . shift as a "spotter" for Oro-Dam Con- The record establishes the following ev- structors, and his assignment was to direct idence most strongly in favor of plaintiffs: dump trucks in the area in which dumped The area in which the accident occurred fill was to be spread and tamped down by was well illuminated with mercury lights the paydozer. On the morning of the ac- and visibility was good despite the hour of cident, the men were filling in a corner of the morning. When decedent was struck, the dam surface, and in doing so it was the paydozer was in the process of revers- necessary for the paydozer to go forward ing to position itself to then move forward to spread and tamp down fill ; behind the and then backward within a short distance paydozer decedent was directing dump to accomplish the spreading and tamping of trucks in depositing fill which was to be the earth. Decedent was some 30 to 40 feet spread and tamped by the paydozer at a behind the paydozer, standing on an angle later time. Prior to backing up, the oper with his back to the paydozer when it back- ator of the paydozer, who had not observed e d u p a n d s tr u c k h im . P ik e f o r a b o u t f i ve m in u te s, lo o k e d t o t h e D e c e d e n t ' s w id o w a n d m in o r c h ild r e n re a r t o a sc e r ta in if it w a s c le a r , b u t h e d id b ro u g h t th is a c t io n f o r w r o n g f u l d e a t h n o t se e P ik e , w h o w a s s ta n d i n g 3 0 t o 4 0 fe e t b e h in d th e ve h ic le a n d w e a r in g a lu m in o u s a g a i n st t h e m a n u f a c t u re r o f t h e p a y d o z e r . jacket. The operator testified that there .up The case was tried to II jury. Plaintiffs was a substantial blind spot to the rear of sought to establish the liability of the defen- the paydozer because of its design. He also dant on either a negligence or a strict lia- testified that the lighting was clear enough bility theory, based on the design of the so that workers on the other side of the paydozer. At the conclusion of plaintiffs' dam were visible. I. International Harvester Company. which owns the stock of Frank G. Hough Com- pany. was also named a defendant and awarded a nonsuit. Its nonsuit. granted on the ground that it played no part in the manufacture of the paydozer, is not contested on this appeal. 77-7.77-'77-'171171""Pr Ir.' : • , 1 1 0 0 . 3 . : 4
  • 4. • -•• • ,: -":?"' 632 85 CALIFORNIA REPORTER 2 Ca1.3d 469 The Hough paydozer was a large, noisy earth-moving machine. It was designed to move backward as well as forward and, as here, to perform in confined areas. It was equipped with two white headlights, and, on the rear, two red taillights and t•o white lights. At the time of the accident, only the red taillights were illuminated; the headlights were turned off because the dump truck operators complained of the glare, and the rear white lights were off because they blinded other equipment oper- Aro atorworking in the vicinity. The pay -dozer had no rearview mirrors arid no audible or visible backup warning signal. Robert Snyder, a registered mechanical engineer, appeared as an expert for plain - tiffs. According to his testimony, the design of the paydozer with its large engine box to the rear created a blind area behind the paydozer of such dimension that, if the operator looked behind him while sitting in the cab, he could not see a man six feet tall standing anywhere between one and 48 feet to the rear of the machine. The blind area extended laterally at least 10 feet to each side of the midline of the paydozer. Snyder testified that the blind area could be reduced from a rectangle 48 feet by 20 feet to a cone-shaped area with a maximum length behind the machine of 12 feet by installation of two rearview mirrors located four feet out from each side of the cab. The four-foot distance, he pointed out, would not project the mirrors beyond the vertical line of the huge tires on the tractor. The mirrors he described were similar to those he had seen on ditchdigging equipment. He also recommended a blinking amber light or a tooting horn to alert persons within the remaining blind area. In nonsuiting plaintiffs on their negligence cause of action, the trial court held as a matter of law that a vehicle intended to move backward is not negligently designed although the operator cannot see a man 30 to 40 feet behind him in the direct path of the vehicle and although simple mirrors and lights could alleviate the danger. The court was in error; this was essentially a question of fact for determination by the jury. [2, 3] The duty of a manufacturer with respect to the design of products placed on the market is defined in the Restatement Second of Torts, section 398: "A manu- facturer of a chattel made under a plan or design which makes it dangerous for the uses for which it is manufactured is subject to liability to others whom he should expect to use the chattel or to be endanger- ed by its probable use for physical harm caused by his failure to exercise reasonable care in the adoption of a safe plan or de- sign." Thus, the manufacturer must use reasonable care " 'to so design his product as to make it not accident-proof, but safe for the use for which it was [sic] intended.' " (Varas v. Barco Mfg. Co. (1962) 205 Cal.App.2d 246, 258, 22 Cal.Rptr. 737. 744, quoting from 76 A.L.R.2d 91, 94.) What is "reasonable care," of course, varies with the facts of each case, but it involves a balancing of the likelihood of harm to be expected from a machine with a given design and the gravity of harm if it happens against the burden of the precaution which would be effective to avoid the harm. (2 Harper and James, The Law of Torts (1956) § 23.4, p. 1542.) [4] Applying the foregoing standards to the cas e at bar, it w•ould js eem a jury ,J 71 could conclude that a m anufacturer of a vehicle intended to go backward should have been aware that the machine's s tructural des ign made it impossible for the operator to s ee a man s tanding any- where between one and 48 feet behind the machine and in its direct path. And, having s o found, a jur y could decide that a manufacturer who failed to c orrect this deficiency with two rearview mirrors , or any comparable device, vio lated his duty to produce a product reas onably s afe for its intended us e. Although that res ult may not have been compelled, the evidence was sufficient to jus tify s uch findingi, and
  • 5. Although no cases in Cab fornia or other jurisdictions have considered facts identical to those in the instant action, the weight of authority supports a finding of negligent design. In Zahora v. Harnisch feger Cor- poration (7th Cir. 1968) 404 F.2d 172, the circuit court reversed a summary judgment for defendants under somewhat comparable circumstances. While plaintiff was look- ing into the malfunctioning in the bridge of a crane, the operator moved the crane and crushed him aga inst the cab. The operator testified that he could not see plaintiff and that it was probably because the bottom half of the door to the cab was metal, so that his vision of the bridge was restricted. On the basis of this evi- dence, the court stated: "Viewing the implications and inferences of the operator's deposition in a light most favorable to the plaintiff, we find his comments suggest it is at least disputable whether or not the cab design permitted the operator that amount of vision necessary to the safe operation of the crane." (Id. at p. 177.) In the case at bar, the trial court granted a nonsuit, rather than a summary judgment, but these plaintiffs' evidence was stronger than that in Zahora. Here no reliance on mere "implications and inferences" is required, for the expert witness testified that there was a definite massive blind area behind the paydozer, but that installation of - two mirrors would have made decedent visible to the operator long before the point of impact. Our recent case of Menchaca v. Helms Bakeries Inc. (1968) 68 Cal2d 535, 67 Cal. Rptr. 775, 439 P2d 903 lends support to plaintiffs' position that they were wrong- fully nonsuited. We held there that an issue of jury dimensions was raised as to whether a bakery truck was negligently equipped in lacking mirrors to correct a 2. Of course, plaintiffs must show causation as well ns breach of duty. But Snyder testified that the blind spot would have been reduced to 12 feet with mirrors, a distance beyond which the decedent was OSCJIRpu,-401 /2 plaintiffs need do no such evidence to avoid 2 Cal.3d 472 PIKE v. FRANK G. HOUGH COMPANY 633 Cite am, au p., Ni Cain 't e. t,211 more than produce blind spot. "Considerable evidence indicated a nonsuit.2 that the truck had been negligently equip- A - 4
  • 6. ped. Defendant planned and intended the truck to attract children to purchase bakery products fromjit ; defendant knew that a substantial blind spot in front of the truck obscured the vision of the driver; defendant nevertheless equipped the truck with a mirror that revealed to the driver only the central third of the [front] bumper. Sure ly d efendant bo re an ob - ligation to equip the truck so as to provide for its safe operation and avoid danger to its expected customers, who were small children. * * * The testimony showed that Richard became the unfortunate victim of defendant's alleged breach of duty. Richard, who was 36 inches tall, was stand - ing immediately in front of the truck and probably did not come within the driver's vision because of the truck's blind spot; yet additional mirrors would have made him clearly visible. The court erred, therefore, in removing from the jury's consideration the factually disputed issue of whether or not the truck was negligently and dangerously equipped." (Id. at pp. 540-541, 67 Cal.Rptr. at p. 778, 439 P.2d at p. 906.) By parity of analysis, plaintiffs' evidence in the instant action created a triable issue whether the paydozer was negligently and dangerously designed without mirrors to provide a range of vision for the operator to avoid accidents in backing up. Other California cases recognize a cause of action against a manufacturer for negli- gent design of a product and support plain - tiffs' contention that failure to provide reasonable safety devices may constitute negligence. "plot- the purpose of showing that there has been a failure to comply with the standard of due care, it is proper to introduce evidence as to the necessity and feasibility of changes in the design of parts of a machine so as to enhance the factor o f s a fe t y ." (V a ra s v. Ba rc o Mfg. Co . positioned ; that testimony should have been sufficient to establish that the de- fendant's negligent failure of design caused the decedent's death. There is no serious issue of causation raised on this appeal. •
  • 7. 634 85 CALIFORNIA REPORTER 2 CaL3d 472 (1962) supra, 205 Cal.App.2d 246, 259, 22 Cal.Rptr. 737, 744.) In Varas, it was held that evidence, showing that the threads on the gas cap of an earth-compacting machine permitted oil and gas to spray onto the operator while other feasible threads would not, was sufficient to avoid a nonsuit in an action for personal injuries to .the operator resulting from his catching fire due to the oil and gas on his body. Similarly, Reynolds v. Natural Gas Equip- ment, Inc. (1960) 184 Cal.App2d 724, 7 Cal.Rptr. 879 held that it was error to non- suit a plaintiff who offered evidence that the explosion causing his injuries resulted from the unexplained closing of the air cap on a burner which could have been avoided by a safety weld or a set screw in the design of the burner. Other cases which hold evidence of absence of feasible safety features in design causing plaintiff's injuries was sufficient to avoid a nonsuit include Boeing Airplane Company v. Brown (9th Cir. 1961) 291 F.2d 310 ; Robinson v. Reed-Prentice Corporation (9th Cir. 1961) 286 F.2d 478; and Darling v. Caterpillar Tractor Co. (1959) 171 Cal. App2d 713, 341 P.2d 23. The foregoing authorities and the case at bar are distinguishable from Hatch v. Ford Motor Co. (1958) 163 Cal.App2d 393, 329 P2d 605. In Hatch, plaintiff, a young child, lost his eye when he walked into a nine and three-fourths inch hood ornament on a parked Ford automobile. The court Aptiaffirmed a judgment for defendant entered upon a general demurrer, but carefully delineated the reasons for its holding: "There is not involved in this case any question of a defect which created a risk of injury to its driver or passengers therein or to persons upon the highway through its use in the normal manner for which it was manufactured to be used • * *. If we were to hold that there was a duty to render a vehicle safe to collide with rather than simply a duty to so manufacture it as to make it safe for the use for which it is intended, i. e., to move upon the highways or to be safely parked, that duty would apply not only to ornaments * • • but to functional parts of the vehicle. • * * In other words, each case in which a person collided with a standing vehicle and received some injury from a part of the vehicle which injury he might not have sustained had the vehicle been con- structed in some other manner would raise a question of fact as to whether the manufacturer was liable to that person." (Id. at pp. 396-397, 329 P.2d at p. 607.) By contrast, in the instant case, a jury could find the decedent was killed as a result of defects in the design of the paydozer which created a substantial and unreasonable risk of injury to persons working in the vicinity of the paydozer while it was engaged in its normal backing-up operations necessary to the moving and compacting of earth. [5-9] Defendant contends that the dan- ger of being struck by the paydozer was a patent peril and, therefore, that it had no duty to install safety devices to protect against an obvious danger. We do not agree. First, although all vehicles contain the potential of impact, it is not necessarily apparent to bystanders that the machine operator is incapable of observing them though they are 30 to 40 feet behind the vehicle and in its direct path. The danger to bystanders is not diminished because the purchaser of the vehicle is aware of its deficiencies of design. The manufacturer's duty of care extends to all persons within the range of potential danger. Second, the obviousness of peril is relevant to the manufacturer's defenses, not to the issue of duty. If a bystander does not exercise due care to protect himself from an evident peril, he may be contributorily negligent. (Brooks v. Allis-Chalmers Mfg. Co. (1958) 163 Cal.App.2d 410, 415, 329 P.2d 575.) But the issue of contributory negligence is one normally for the jury ; c:early the evidence here did not justify nonsuiting plaintiffs on the ground of decedent's con- tributory negligence as a matter of law. (See Varas v. Barco Mfg. Co. (1962) supra, 205 Cal.App2d 246, 262-263, 22 Cal.Rptr. 737.) Indeed, *" [ w ] here a person must
  • 8. 2 CaL3d 475 PEKE v. FRANK G. HOUGH COMPANY 635 cue Cal.Uptr.629 work in a place of possible danger the amount of care he is bound to exercise for his own safety may well be less by reason of the necessity of his giving attention to his work than would otherwise be the case.'" (205 Cal.App2d at p. M3, 22 Cal. Rptr. at p. 747, quoting Johnson v. Nichol- son (1958) 159 Cal.App.2d 395,.410, 324 Pfd 307.) zia 1[10] Finally, even if the obviousness of the peril is conceded, the modern approach does not preclude liability solely because a danger is obvious. "Today, however, the negligence principle has been widely ac- cepted in products liability cases; and the bottom does not logically drop out of a negligence case against the maker when it is shown that the purchaser knew of the dangerous condition. Thus if the product is a carrot-topping machine with exposed moving parts, or an electric clothes wringer dangerous to the limbs of the operator, and if it would be feasible for the maker of the product to install a guard or a safety release, it should be a question for the jury whether reasonable care demanded such a precaution, though its absence is obvious. Surely reasonable men might find here a great danger, even to one who knew the condition; and since it was so readily 'avoidable they might find the maker negligent. Under this analysis the obviousness of a condition will still preclude liability if the obviousness justifies the conclusion that the condition is not unreasonably dangerous; otherwise it would simply be a factor to consider on the issue of negligence. * * * The greatest conceptual obstacle to recovery * * * conies in the case where the buyer himself is hurt by the article. * * *• Surely it is well within the framework and spirit of [recent] common law modifications to require rea- sonable care to protect even the buyer himself from what may be foreseen as an unreasonable danger to him. But even if courts are unwilling to go so Ear, without legislation, in the case of the adult buyer or user, the existing law of negligence de- mands this duty of care where others are threatened by want of a feasible safety de- vice wherever the foreseeable danger to them is unreasonable." (Harper and James, The Law of Torts, supra, § 28.5, pp. 1543, 1545.) To the same effect see 71 Yale Law Journal 816, in which Professor Noel wrote (at p. 83S): "Any definite requirement that the defect or the danger must be latent seems to revert to the concept that a chattel must be 'inherently' dangerous, and this concept has been replaced under the modern decisions, by the rule that the creation of any unreasonable danger is enough to estab-. lish negligence. Under the modern rule, even though the absence of a particular safety precaution is obvious, there ordinarily would be a question for the jury as to whether or not a failure to install the device creates an unreasonable risk." Ve conclude, therefore, that it was error to nonsuit plaintiffs in their cause of action based on the negligent design of the pay- dozer. The issue should have gone to the jury. Ve now discuss their cause of action based on a strict liability concept. California has pioneered in the develop- ment and extension of the theory that ma n u fac turer s a re str ictly liab le in to rt fo r in ju r ie s to pe rso ns ca use d b y de fec ts in th e ir p ro d uc ts. ( See E sc o la v. Coc a Co la Bo ttlin g Co. ( 1 94 4) 2 4 Ca l. 2d 4 53, 4 61 - 46 8, 15 0 P. 2 d 4 3 6, c on cu rr in g op in io n o f Tra yn or, J.) . E n ou r lan d mar k op in io n 1 475 in Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 62, 27 Cal.Rptr. 697, 700, 377 P.2d 897, 900, we held that "[a] manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being." In Vandermark v. Ford Motor Co. (1964) 61 Calid 256, 37 Cal.Rptr. 896, 391 P.2d 168, we applied such strict liability to retailers, and in Elmore v. American Motors Corp. (1969) supra, 70 Ca1.2d 578, 585-587, 75 Cal.Rptr. 652, 451 P.2d 84, we extended protection beyond users and consumers of defective products to bystanders within "the risk of the maker's enterprise."
  • 9. (11] Here the trial court held as a mat- ter of law that the paydozer was not de- fectively designed and that the doctrine of strict liability was inapplicable. We cannot agree. The Restatement Second of Torts, section 402A succinctly recites the standard for strict liability applicable to manufacturers: "One who sells any product in a defective condition unreasonably dan- gerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer [or bystander]3 or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold." In the instant action, plaintiffs contend that the paydozer contained a fundamental defect of design which made it unreasonably dangerous for its intended use, in that the operator could not see persons working behind him within a rectangular area 48 feet by 20 feet. Most reported cases in California and other jurisdictions have applied strict liabil- ity to products containing defects in their manufacture; few have involved defects in design. However, there is no rational distinction between design and manufacture in this context, since a product may be equally defective and dangerous if its design subjects protected persons to unreasonable risk as if its manufacture does so. Indeed, in Greenman v. Yuba Power Products, Inc. (1963) supra, 59 Cal.2d 57, 64, 27 Cal.Rptr. 697, 701, 377 P.2d 897, 901, we held that plaintiff could recover on a strict liability theory if he proved "that he was injured while using the Shopsmith in a way it was intended to be used as a result of a defect in design and manufacture * * *." (Italics added.) 3. As noted above, since Elmore v. American Motors Corp. (19(191 supra, 70 Cal. 2d 57S, 75 Cal.ltptr. 652, 451 P.2d 84, California courts extend protection to by- standers. A recent California case expressly holds that a product may be defective if it lacks safety devices necessary to its reasonable safety. In Garcia v. Halsett (1970) 3 Cal. App.3d 319, 82 Cal.Rptr. 420, the plain- tiff sued the owner of a launderette for injuries sustained while using one of the washing machines in the establishment. Plaintiff waited se veral minutest fter the is s machine had stopped its spin cycle before opening the door to unload his clothing. After unloading one handful, he inserted his hand into the washer a second time and the machine suddenly started spinning. His arm became entangled in the clothing and he sustained injuries. The evidence indicated that the accident could have been avoided by installation of a common two- dollar micro switch which would have au- tomatically shut off the electricity in the machine when. the door was opened. The trial court refused to instruct the jury on strict liability. The Court of Appeal re- versed, holding the evidence sufficient to justify findings tliat the washing machine was defective in its design because it lacked a micro switch and that the owner of the launderette, "in the same manner as a manufacturer, retailer, or lessor," was strictly liable in tort. (Id. at p. 326, 82 Cal.Rptr. at p. 423.) Persuasive authorities in other jurisdic- tions have also reached the conclusion that products lacking safety devices may be defective. In Wright v. Massey-Harris, Incorporated (1966) 68 Ill.App.2d 70, 215 N.E.2d 465, defendant's motion to dismiss was reversed on the ground that plaintiff had stated a good cause of action in both negligence and strict liability, based on the design of the defendant's cornpicker. "The present case involves a claimed defect in design rather than a defect in manufacture and we interpret Suvada 4 to mean that the strict liability imposed 4. Suvada v. White Motor Company (1965) 32 111.2d 612. 210 N.E.2d 1S2. Suvada, like its Greenman eounterpnrt in Cali- fornia. established the liability of sellers of defective and unreasonably dangerous products without privity of contract. 636 85 CALIFORNIA REPORTER 2 CaL3d 475
  • 10. 2 Ca1.3d 477 PIKE v. FRANK G. HOUGH COMPANY . 637 Cite as, Sup.. 85 CalStptr. upon a manufacturer includes injuries which arise from defects in design as well as defects in manufacture. Whether the design defect in the present case is of a nature upon which liability can be imposed involves the factual question of whether it creates an unreasonably dangerous con- dition, or, in other words, whether the product in question has lived up to the re- quired standard of safety." (Id. at p. 470.) The defects alleged in the cornpicker were that it lacked a shield over the area in which ears of 'corn could jam in the chain mechanism and a guard over the shucking rollers from which ears of corn were manually extracted. Thus, on the basis of a case no broader in scope than Greenman, the Illinois court applied strict liability to a machine defective in design because it lacked safety devices which would have reduced the risk of harm. (Also see Illnicki v. Montgomery• Ward Company (7th Cir. 1966) 371 F.2d 195; Williams v. Brown Manufacturing Company (1%8) 93 111.App2d 334, 236 N.E.2d 125.) We adapt a similar rule to this case. Whether the paydozer was unreasonably dangerous due to faulty design when it left the hands of the manufacturer is clearly a question of fact to be determined by the jury. Furthermore, California cases provide support by analogy for the proposition that prOducts designed without necessary safety ot devices may bound defective. In Canifax v. Hercules Powder Co. (1965) 237 Cal. App.2d 44, 53, 46 Cal.Rptr. 552, 558, it was held that "a product, although faultlessly made, may nevertheless be deemed 'defec- tive' under the rule [in Restatement Second of Torts, section 402A] and subject the supplier thereof to strict liability if it is unreasonably dangerous to place the product in the hands of a user without a suitable warning and the product is supplied and no warning is given." (See also Barth v. B. F. Goodrich Tire Co. (1968) 265 Cal. App.2d 228, 244-245, 71 Cal.Rptr. 306; Rest. 2d Torts, § 402A, corn. j, at p. 353.) No rationale has been suggested to justify imposing strict liability with respect to a faultlessly made product which is unreasonably dangerous because it is produced without safety warnings, while refusing to impose strict liability with respect to a product which is unreasonably dangerous because it is produced without safety devices. [12] Of course, we do not decide whe- ther the paydozer is in fact unreasonably dangerous for its intended use, but only that plaintiffs' evidence was sufficient to support a jury verdict in their favor. A jury could decide that an earth-moving machine with a 48-foot by 20-foot rectan- gular blind spot was dangerous "to an ex- tent beyond that which would be contem- plated by the ordinary consumer who purchases it [or by a bystander], with the ordinary knowledge common to the com- munity as to its characteristics." (Rest. 2d Torts, § 402A, corn. i, at p. 352.) The judgment for Frank G. Hough Company is reversed. The judgment is af- firmed as to International Harvester Company. Plaintiffs are to recover their costs on appeal. McCOMB, PETERS, TOBRINER, BURKE and SULLIVAN, JJ., and PEEK, J.,t assigned, concur. 2. Retired Associate Justice of the Supreme Court sitting under assignment by the Acting Chairman of the Judicial Council.
  • 11. CALIFORNIA REPORTER 2 Ca1.3d 663 VOLUME 117 simply attempted to convey concept that product need not be free from all risk of harm and that it may not be found defec- tive simply because an accident has oc- curred and, in context of entire instruction, it was not confusing to jury. Reversed. 1. Products Liability X75 In proving existence of product defect, plaintiff is not required to establish that defect made product unreasonably danger- ous. 2. Appeal and Error <882(12) Plaintiffs who requested instruction directing jury to find whether defendant sold its product in defective condition un - reasonably dangerous to user or consumer were not entitled to complain of instruction given on strict liability theory requiring that defect make product unreasonably dangerous and unsafe for its intended use. 3. Appeal and Error <1064.1(1) Generally, if it appears that improper instruction was likely to mislead jury and thus become factor in its verdict, it is prejudicial and ground for reversal. 4. Appeal and Error <1064.1(8) Where one instruction, relating to products liability, erroneously imposed on plaintiffs the burden of proving that de- ceased oiler on construction project had been unaware of defect in crane manufac- tured by defendant and second instruction, relating to assumption of risk, correctly imposed on manufacturer burden of prov- ing that deceased had been aware of defect when he was struck by counterweight on 527 P.2d 353 12 Ca1.3d 663 _up dflosa Lee HENDERSON et al., Plaintiffs and Appellants, r . HARNISCHFEGER CORPORATION, Defendant and Respondent. Sac. 8000. Supreme Court of California. In Bank_ Oet. 28, 1'174. Wrongful death action against manu- facturer of large earth-moving crane brought by wife and children of construc- tion project oiler killed when he was 'truck by counterweight and crushed gainst base of crane. The Superior Court, Yolo County, James C. McDermott, J., entered judgment on verdict for defendant and plaintiffs appealed. The Supreme Court, Sullivan, J., held that where one instruction, relating to products liability, erroneously imposed on plaintiffs burden of proving that deceased had been unaware of defect in crane and second instruction, relating to assumption of risk, correctly imposed on manufacturer burden of proving that deceased had been aware of defect it was impossible to determine basis of verdict for defendant and since inclusion of lack of awareness could have given defendant advantage in view of evidence of deceased's familiarity with crane, error was prejudicial, but that instruction on strict liability. to effect that manufacturer is not required under law to create and deliver its product so as to make it accident proof, 117 Cal Rptr —1 1
  • 12. 117 CALIFORNIA REPORTER 12 Ca1.3d 663 crane and crushed aganst its base, it was impossible to determine basis of verdict for defendant and, since inclusion of lack of awareness could have given defendant ad- vantage in view of evidence of deceased's familiarity with crane, error was prejudi- cial. West's Ann.Const. art. 6. § 13. 5. Products Liability C:=49 Issue of awareness of plaintiffs' dece- dent of defect in crane at time he was crushed represented only one of several el- ements of defense of assumption of risk in products liability action and finding of awareness would not establish necessary elements of voluntary and unreasonable en- countering known danger. 6. Products Liability C=41l In determining whether decedent acted unreasonably in using crane manufactured by defendant at time he was fatally in- jured, fact that duties of decedent's em - ployment required that he oil and grease the crane could be considered by jury, in products liability case. 7. Trial C=;343 General verdict implies finding in fa- vor of prevailing party of every fact es- sential to support of his action or defense. 8. Appeal and Error C=)928(l) In determining whether instructions given are correct, Supreme Court must as- sume that jury might have believed evi- dence upon which instruction favorable to losing party was predicated and that, if correct instruction had been given upon that verdict, jury might have rendered verdict in favor of losing party. 9. Products Liability C=96 Instruction on strict liability, to effect that defendant manufacturer of product is not required under law to create and deliv- er its product so as to make it accident proof, simply attempted to convey concept that product need not be free from all risk of harm and 2 Andrew j. Smolich, Itertolani & Smolich, Sacramento. P. M. Barceham Burton J. Goldstein, Albert E. 'Levy, Ralph Golub, Goldstein, Barceloux & Goldstein and M. Reed Hunter, Chico, for plaintiffs and ap- pellants. P. Beach Kuhl, Sedgwick, Detert, Moran & Arnold and David B. t'aynter, San Fran- cisco, for defendant and respondent. _tULLIVAN, Justice. Atsis In this action for damages for wrongful death, plaintiffs, who are the surviving wife and children of Thomas Tackson Hen- derson, appeal ;rom a judgment entered (in a verdict in favor of defendant. Decedent was employed as an oiler by Continental-Heller Corporation on a con- struction project at the University of Cab - fornia at Davis. He was assigned to a large earth-moving crane manufactured by defendant 1 I arnisch f ege r Corporation, which .was operated by Maynard, a Continental employee. Decedent's duties were to keep the crane properly oiled and greased, to move it from one job to another and to assist the operator in its safe and efficient use. The equipment consisted of a cab containing the operator's controls, a boom mounted on the body in front of the cab and a counterweight to the rear of the cab designed to give the crane stability when the boom was extended. There was evidence that the boom and its counterweight normally rotated without making any noise. Decedent was killed by the crane shortly after he had signaled the operator that the boom could be swung into a new po sition. As the boom was rotating, the operator felt a "thump" and immediately stopped the crane. No one observed the accident but the record establishes that dAsdent was ass.: struck by the counterweight and crushed against the base of the crane.'
  • 13. that it may not be found defective simply because an accident has occurred and, in context of entire instruction t. The reason for Ileve&nem presence in the danger zone is not entirely (gear. The evi- it was not confusing to jury in the particu - lar case. &nee suggests that he might have been urinat- ing; the fly of hi>i trousers was open nod
  • 14. 12 Ca1.3d 668 HENDERSON v. HARNISCHFEGER CORPORATION 3 Cite as. Sup., it t•at.ltptr. I Plaintiffs brought the present action against Harnischfeger Corporation as the manufacturer of the equipment on theories of negligence and strict liability in tort. They premised the latter theory on the charge that the crane was defective in de- sign in that it was impossible for the oper- ator to have a full view to the rear while operating the equipment. The case was tried to a jury only on the theory of strict liability. Plaintiffs produced expert testimony at trial in order to prove that the crane was defective. Joseph Williams, a mechanical engineer who had inspected the crane, testified that the cab of the crane was de- signed in such a manner as to completely obstruct the view of the operator to the rear in the area where the counterweight swung. lie expressed the opinion that this blind spot could he almost entirely elimi- nated by installing a mirror on the side of the cab: that, depending on the size and shape of the mirror, it would give the op- erator a clear field of vision to the coun- terweight during its movement; that a mirror could be effectively used by the op- erator without interfering with his control of the crane; and that its cost would not exceed $125. In addition, he stated the crane could lie equipped with a sounding device which would warn others not to en- ter the zone of danger during the opera- tion of the crane.2 Such a device could lie installed at a cost of $100 to $200. John New, an experienced crane operator, who had handled an identical crane, testified that after nearly hitting a person with the counterweight, he installed a mirror to eliminate the blind spot in the rear. How- ever, the mirror was required to be dis- mantled each time the crane was moved to a new site and, on one occasion when he a tire on the rig Was observed to he wet. On the other hand, the record supports the in. ferenee that the decedent might have been using :t cabinet—situated on the side of the crane where the neehient ,s-eurred—in whieh he kept his tools and equipment. After the accident, the cabinet door was found open and a valet. cop, apparently taken from the cabinet. was found nearby. failed to replace the mirror, an accident remarkably similar to the present one oc- curred. New expressed the opinion that the accident would not have occurred had his crane been equipped with the mirror. Further, he believed that a crane operator would be able to use a mirror for rear vision and still devote sufficient attention to the movement of the crane in front. fendant introduced expert testimony to the contrary. James Collins, a mechanical engineer, while conceding that the in- stallation of a mirror would enable the op- erator to see to the rear, recommended against such a measure. In his opinion it would divert the attention of the operator from the movement of the boom, which he thought was fie major hazard to the oper- ator and to others. lie concluded that a sounding device would be ineffective since the danger of entering the area of the arc of the counterweight would be obvious to anyone. Defendant also presented evidence on its defense of assumption of risk. Churchill Brunley, who was supervising the operation of the crane on the day of the accident, described decedent as "alert" and "in- telligent." lie testified that upon leaving the area Mimi!: 10 or 15 minutes before the accident occurred, he warned decedent about the danger of being struck by the counterweight and instructed the latter to keep other persons out of the danger Lone. Additionally, the record reveals that the decedent had been employed as an oiler for four years and was familiar with the oper- ation of the crane. In instructing the jury on the theory of strict liability in tort, the trial court gave a modified version of former BAP No. 9.01 (Cal.Jury Instrs.Civ. (5th rev.ed.1969)).3 2. lteeause of limited visibility to the rear. the crane came equipped with a similar device which sounded a warning when the carriage of the crane was moved in reverse. 3. The instruction stated as follows: "The defendant man torturer of a product is not required under the laic so to create and delircr its product nv to make it accident proof; how: ever, it is subject to liability to the plaintiffs
  • 15. 4 117 CALIFORNIA REPORTER 12 Ca1 Under this instruction, the court informed the iury that "[tJhe defendant manufacturer of a product is not required under the law so to create and deliver its product as to make it accident proof . . . . " The same instruction also told the jury that in o rder to establish defendant's liability, plaintiffs had the burden of proving, among other things, that the decedent was "unaware of the claimed defect" and that the "defect, if it existed, made C!ie product unreasonably dangerous and unsafe for its for any injury suffered by them if Ihr plain- tiffs establish bp a )11(71071d C ranee of the cri- denee all of the facts necessary to prove each of the following conditions: "First : That the defendant nlaved the prod- uct in question on the market, and the de- fendant knew, or in the exercise of reasonable care should have known, that the particular product, without substantial change, would be used in the way and for the general purpose for which it was designed and intended; "See01111 : That the product was defective iu design or manufacture at the time it was !llama on the market and delivered: "Third: That the deceased was unaware of the claimed defect; "Fourth: That the claimed defect was a proximate Noise of any such injury or death occurring while the product was being used in the way and for the general purpose for which it was designed and intended, and in a man- ner which was reasonably foreseeable by the manufacturer at the time the product was !dared on the market ; "and Fifth: 77tat the defect, if it existed. *took the rrifduct unrefixi• hatily ilan iermur nail unsafe for its intended use." (flakes added.) The instruction is no longer rec4immended by the Committee on ItA.11. (11.31 (cum. pocket 14. 1973) it. 43.) The sole instruct" pertaining to Ilse. products liability is now contained in 1:..T1 No. 9.1)Ito Pocket pt. 1973) p. 37.) Yoder it. the manu- facturer or retailer must be found liable "for injuries proximately caused by a defect in the article which existed when the article left possession of the ilefendatitisl, provided that the injury resulted from a use of the article that Wag reasonably foreseeable by the defendant[e]." 4. The instruction stated: "If the decedent. Thomas Jackson Henderson. it ........`11 the risk (of harm) from (wing struck by the crane plaintiffs may not newer damages for his death resulting Ilierefrom. "In order for said decedent to have assumed such risk, he must 'MVP had netted k........ -ledge of the particular danger of 'wing in the place intended use." We have set forth the per - tinent language in italics. (See f n. 3. ante.) In accordance with defendant's assertion of the defense of assumption of the risk, the court also gave at defendant's request IIAJI No. -1.30 in a modified form' :t the same time, at the request of plaintiffs. the court direCted the jury that it must consider the "necessities" of the decedeilt's employment in evaluating his conduct. ( I I No. 3.40.) 5 where lie W31,4 when struck by the eranc . and an appreciation of the risk iirkol% ell and the magnitude thereof, and must thereafter have voluntarily assumed such risk. "For a person to act voluntarily he must have freedom of11`.1 I 11.11.. f teed•tti choice trust 1' .... ` fr...........•int unistam es that pr„ vide him a reasonable opportunity. w i t tt violating any legal or moral ditty, to safely refuse to expose I ........ self to the danger in ipics thin. "Iii determining whether said decislent as soma! such risk, you may .outsider his ma- turity. intelligenee.........experienee and eapacii. along with all the oth'er surrounding circion• stalwes as shown by the evidence." ''This is the doctrine of assumption of mentioned in the arguments. The burden of proof is upon the defendant. and that is the harden of proving by the e‘idettee all facts necessary to establish that assumption as I Pia VC already defined it for you.- A special assumption of risk instruction in produrts liability cases is .....................• protided iu No. 9.11'.!.. It states in reel Matt part : "Itt order for the plaintiff to !nue ass.................•1 such risk, he must have laid actual knowledge of the defect and an appreciation of the risk or danger ilIVI ved in using the V.• q.ro,.!- r t e t IogetlaT with an tunlerstandnig of the magnitude Of such risk and most thereafterhave voluntarily and unri- oximeibly to use the produet to his injury.'' Iltali.. added.) The italicized word adds an element not present in it.A.11 No. 4.:14), namely, that the choice of the injured party to encounter a ktmwn risk lw unreasonable. 5.. The instruetion stated: "When a ner, “nt's lawful employment requires that he work in a dangerous location or a place that involves un- usual possibilities of injury, or requires that in the line of his duly he take risks which ordinarily a reasonably prudent person would avoid, the towessitiem of such a sitimt ............... in solar oar 11111 17. 1114 the cam'.....I I taat hr 'a u take for his own safety, lesseu the ........................ of emit ion requirea of hint by law in the exercise of ordinary care."
  • 16. [2] Since on the point covered by our later decision in Cronin, plaintiffs requested a substantially similar instruction (see fn. 6, ante), they may not now complain of the corresponding portion of the instruction given by the court. (6 Vitkin, Cal. Procedure (2d ed. 1971) p. 4258; see and compare Luque v. McLean, supra, 8 Cal.3d at p. 146, 104 Cal.Rptr. 443, 501 P.2(1 1163.) However, they are not precluded from urging error based on our ruling in Layne. [3] The precise question, therefore, which we must decide is whether this error requires a reversal of the judgment. Gen- erally speaking if it appears that error in giving an improper instruction was likely to mislead the jury and thus to become a factor in its verdict, it is prejudicial and ground for reversal. (4 Witkin, Cal.Pro- cedure (2d ed. 1971) pp. 3056-3057.) To 6. rtnintiffs requested. but the court refused. an instruction directing the jury to finch whether defendant sold its product "in a de- fective vo mlitio n unreasonab ly dan gerous to user or ..on.............r (Italics 111111441. I 5 put it another way, "I w1here it seems probable that the jury's verdict may have been based on the erroneous instruction prejudice appears and this court 'should not speculate upon the basis of the verdict.'" ( Robinson v. Cable (1961) 55 Cal. 2d 425. 428, 11 Cal.Rptr. 377, 378, 359 P.2d 929, 930; see also Lucille v. McLean, supra, S Ca1.3d 136, 147, 104 Cal.Rptr. 443, 54(1 P.2d 1163: Vistica v. Presbyterian Hospital (1967) 67 Cal2d 465, 471, 62 Cal. Rptr. 577, 432 P.20 193; ()ettinger v. Stewart (1944) 24 Cal2d 133, 140, 148 P. 2d 19.) As we observed in Butigan v. Yellow Cab Co. (1958) 4') Ca1.2(1 652, 660-661, 320 P.2d SOO, 505, "The determination whether, in a specific instance, the probable effect of the instruction has been to mislead the jury and whether the error has been prejudicial so as to require reversal depends on all the circumstances of the case, including the evidence and the other instructionstiven. No precise formula can be drawn." (Sec also Bridgman v. Safeway Stores, Inc. (196(1) 53 Ca.1.2d 443, 450, 2 Cal.Rptr. 146, 348 P.2d 696; Alarid v. Vanier (1958) 50 Cal.2d 617, 625, 327 P.2d 897.) Mindful of these principles, we proceed to determine the probable effect of the in - struction placing on plaintiff the burden of proving "that the deceased was unaware of the claimed defect" (see fn. 3, ante), which instruction, as we have already pointed out, was declared erroneous by us in Luque The essence of our holding there was that the instruction was improper since it told the jury in effect that the plaintiff had the burden of proving that he had not assumed the risk of the claimed defect. The almost identical language in the case at bench conveyed the same direction in respect to the decedent's conduct. But the court also instructed the jury as to the defense of as- sumption of risk, informing them properly that the burden of proving such defense was on defendant. 7. Plaintiffs requ ested au instru ctio n o mitting this element as a part o f their a ffirmative case bu t the instru ctio n was refu sed. 12 CaL3d 671 HENDERSON v. HARNISCHFEGER CORPORATION Cite nm. Sop.. 117 'n1.1tpt r. I The jury by a vote of 10 to 2 returned a general verdict in favor of I larnisch feger and judgment was entered This appeal followed. apt j11.] It is clear, and the parties agree, that the court's instruction on strict liability in tort (see fn. 3, ante) is erroneous in the light of subsequent opinions of this court. After the trial in this case, we rendered our decisions in Cronin v. J. B. E. Olson Corp. (1972) S Cal.3d 121. 104 Cal. Rptr. 433, 501 P.2d 1153 and Luque v. McLean (1972) S Cal.3d 136, 104 Cal.Rptr. 443, 501 P2d 1163. Cronin held (8 Ca1.3d at pp. 134-135, 104 Cal.Rptr. 433, 501 P.2d 1153) that in proving the existence of a product defect, the plaintiff is not required to establish that the defect made the prod - uct "unreasonably dangerous." 6 Luque held (8 Ca1.3d at p. 146, 104 Cal.Rptr. 443, 501 P.2d 1163) that in a products liability action the plaintiff does not have the bur- den of proving that he was unaware of the defect causing the injury:: accordingly.
  • 17. .ijaajdorm-rnif;iamiorlarigam " JcaniannaSsait 6 117 CALIFORNIA REPORTER 12 Ca1.3d 671 [41 It is dear at once that the two in- structions are contradictory and irreconcil- able: The first, purporting to set forth the ingredients of products liability im- pruperfy told the jury that plaintiffs had the burden of proving that the deceased was unaware (i. c., that he was not aware) of the claimed defect; the second, setting forth the essentials of assumption of risk, told the jury that defendant had the burden of proving that the deceased was aware of such defect. It is impossible to determine whether the jury returned a verdict for de- fendant because they found that plaintiffs had failed to prove that the deceased was not aware of the claimed defect or because they found that defendant had proved he was aware of it. [s.s] It is also apparent that inclusion of the element of lack of awareness in plaintiffs' case could have given defendant the advantage of a less onerous defense to Wit. There was evidence that the deem:lent was familiar with the working of the crane and that, additionally, he had ham warned of the dangerous condition remitting from the operator's obstructed view to the rear. Thus the verdict for defendant could have been based simply on a a. lbe evidence in the present case tending to aataailish a tIefeet in design was similar in army respeets to the facts in Pike v. Frank S pouch ro. (197411 2 ra1.11 41Z, S.-. Cal. Rate. 4b7 1•.2d 129. although the hitter was haws! on negligence rather than strict railbilty in tort. In Pike plaintiffs' decedent vas sittwek by a large pnyllor.er while the atmeliiae was harking up. Plaintiff. in a mainand death action. presented evidence to aloof that the design of the mnehine obstatmeted the view of the operator to the rear ft:a athataatial distance and that this deflationary mould have been corrected 1w installadam WE rearview mirrors. Based on this evidame.>K hehl that whether the prodnet was teTipetiflp 4Iesigtu1 was a question of fart sr die jury and therefore reversed a nananit In fats, of defendant. (See also Zabora v. nmemittehroare Corp. (71k 1116.4) 404 F. t elannection with the defense of assumption me tint saisertml by defendant. plaintiffs canasta that evidence on that issue was MO inissibanatia1 that it was error to submit it to Oa jun. Ilowcirr. we think that the evi- finding that plaintiffs had not sustained their burden in proving that the decedent was unaware of the defect. I lad the jury made such a finding, they would have ex- onerated defendant manufacturer from lia- bility even if they also believed that the crane was defective in design.8 Oajourse, the issue of awareness of the defect repre- sents only one of several elements found in the defense of assumption of risk in a products liability action.9 At the most. it includes the elements of knowledge and ap- preciation of the risk. Luque demonstrates that more is required; we stated there that " '[t]he only form of plaintiff's negligence that is a defense to strict liability is that which consists in voluntarily and unreason- ably proceeding to encounter a kn milt do n - ger, more commonly referred to as assump- tion of risk. For such a defense to arise, the user or consumer must become aware of the defect and danger and still proceed unreasonably to make use of the product.' (Italics added.) [Citations.]" (Luque v. McLean, supra, S Ca1.3d at p. 145, 104 Cal.Rptr. at p. 449, 501 P.2d at p. 1169.) to The issue of awareness included neither the element of voluntariness nor the element of reasonableness." Thus, apart from derive n-biel we have describisl raised issues of fact Oil whether the deeislent ass .............A tile risk of harm in the prod net manufactured by defendant. 10. The description in Latrine of the type of plaintiff's conduct that will fon-dose liability in a products liability action relies on cinn- meat -IC section 4412A of the Ili-statement Second of Torts. The romment indicates that the defense it deseribes is consistent with the role applied to strict liability eases generally. (See Rest.241 Torts. §§ 515, 524: Fleming. Assumption of Risk: Unhappy Reincarnation (19681 7t Yale Ia. 19.1., fn. 4: Prosser. Law of Torts (4th ed. 1471) pp, 522- 524. 670-671.1 II It will be reenlled that the court rave an instruction to the jury that the "necessities" of decedent's employment may "lessen the .............. of efigitimt required of him hy (Italics tabled; Mee fn. 5• an fc.1 One rase has suggested thnt the requirements imposed on an employee in working with n dangerous product may lie considered in iletermining whether the risk was enhatetarily assumed by Ilse injured employee. (nhnna. v. SrrV
  • 18. HENDERSON T. HARNISCHFEGER CORPORATION 7 Cita as. tiny_ 117 Cal.npt r. ed of upholding a general verdict. These latter situations deal basically with the prolikni of the sufficiency of evidence to uphold a general verdict. They are grounded on the settled rule that a general verdict implies a finding in favor of the prevailing party of every fact essential to the support of his action or defense (Price v. Bekins Van & Storage Co. (1918) 179 Cal. 326, 32s, 176 P. 452; Tremble v. Tu- man (1917) 175 Cal. 696, 698, 167 P. 142; 4 Vitkin, Cal. Procedure, op. cit., p. 3072). It has therefore been said that "[w]here there are several counts or causes of action, a general verdict will stand if the evidence supports it on any one sufficient count." (4 Witkin, Cal. Procedure, op. eif., p. 3078, original italics.) lioth this court and the Courts of Appeal have in appropriate instances applied these rules. (See Gillespie v. Rawlings, (1957) 49 Cal. 2d 359, 369, 317 P.2d 601 ; l'osz v. Mucha (1962) 209 Cal.App.2d 324, 335-336, 25 Cal.Rptr. 896; Rather v. City & County of San Francisco (1947) 81 Cal.App.2d 625,636, 184 P.2d 727.) [8] But the giving of an imprope r in - stru ction (a s in this matter) o r the refu sal to give a prope r inst ruction pre sents a dif - ferent situation on review. What this df . 7i cou rt said 50 yea rs ago in O'Me ara v. Swortfi gue r (1923) 191 Cal. 12, 15, 214 P. 975, 976, is here germane: "It is t rue that in determining whether or not a verdict is suppo rte d by the eviden ce, we mu st assume that the jury acce pte d the view mo st fa - vo ra ble to the respon dent. Howe ve r, in determining whether or not the inst ruc tions given a re co rrect, we must assu me that the jury might have believe d the cvi - Nlaeltine t'otnintny (N.1 IP:Ark:1971i .1=9 F. Stipp. 3s1.1 It is dear. however. drat the amount of ears required of 1 Ieee4ratt wv.tMnot he relevant to an ordinary eatitritottiory negligence defense sill.,' sails a ilefewse is Ne.st a bar to recovery in a wrier habilis-Iv MI lea.. 0 *Mille V. NI,•Leati. XNP1.41. S p. 145. 104 calltptr. 443. 501 1'.31 TTtitt Neither is it normally relevant to a .11rietras of assumpt• of risk, which. if estald'eaArd. twin defeat liability regardless- of the fart that the injured party may have acted, with absie rare. (Austin v. Riverside Portland Cement Co. (191-ii 44 Cal.'2..1 '235. ..2N2 l'.2d 69.) However. the instruction has sonic hearing on the defense asserted here. As we have explained. the defense requires defendant to prove, among oilier things, that the deeedent en.rwntererl the defeeiive produel voluntarily and oneramonabl y. Thum the neeesNiites of the deeedell CS employment may lie isinsidered by the jury in deriding whether he proeeellts1 unreaponabiy in wing the product. 12 eaL3d 674 the fact that plaintiffs were improperly given the burden of proving that decedent was not aware of the defect when the bur- ien of proof should have been placed on _L defendant to prove that the decedent-us aware, it is likely that the jury's verdict may have been based on what was, in ef- fect, a partial defense. NVe cannot assume that the jury ignored the first instruction and based its verdict solely on the second. "The prejudicial ef- fect of a misstatement of an important principle of law cannot easily be cretin:tune by another declaration contradicting it_ The jury are bound (and so instructed). to accept the court's instructions as correct statements of the law. . . They are likely to be confused and misled by the conflicting statements, and it is not easy to determine which charge controlled their determination." (4 Witkin, Cal. Procedure (2d ctl. 1071) p. 3055; original italics-) As we observed in the Robinson, Vistica and Luque cases cited above, we should nut speculate on the basis of the verdict.. Defendant contends that the erroneous instruction requiring plaintiff to prove that the deceased was unaware of the claimed defect could not have been prejudicial be- cause the jury had ample evidence to reach the same finding based on the assumption of the risk instruction. Defendant cites no authority supporting this claim and indeed provides us with no analysis of the issue of prejudice apart from the bare statement of the argument. We reject the contention as being misconceived and devoid of merit. [7] We believe it is misconceived be - cause it savors of arguments made in an- other context wherein the issue is present- F
  • 19. $ 117 CALIFORNIA REPORTER 12 Ca1.3d 674 dente upon which the instruction favorable to the losing party was predicated, and that a the correct instruction had been given Igen that subject the jury might have rendered a verdict in favor of the losing par- ty." (See also Clement v. State Reclamation Board (1950) 35 Ca12d 628, 6-13-&4, P2d 897; Oettinger v. Stewart, supra, Z4 Ca1.241 133, 141), 148 P.2d 19.) Our problem in the case at bench is one of the latter kind—involving not the sufficiency of evidence, but rather the effect on the jeta7 of an improper instruction. NVe are eat dealing with separate and independent counts or causes of action and the suffi- ciency of evidence on any one of them. Nor are we dealing even with separate is- sues, so independent in nature and isolated in content as to preclude any interrelationship between them. As we have sirorn, the two issues of strict liability on the one hand and assumption of risk on the nalher are inherently conjoined by the facts of the accident. More importantly the "'awareness" language of the instruction on the strict liability issue amounts to a direc- 6iss on assumption of risk and thus spills over into that issue. Or to put it another way, the error of the instruction disap- posood in Littruc cannot be isolated and confined to the first issue but infects and taints the issue of assumption of risk. The fonnula which defendant's argument suggests is nut applicable and certainly will sot permit us to shortcut our constitutional duty to examine the entire record so as to deftennine the effect of the challenged in- struction. (See Warner Constr. Corp. v. Coy of Los Angeles (1970) 2 Ca1.3d 285. Mt in. 18, 35 Cal.Rptr. 444, 466 P.2d 996.) EL Defendant slireetit our attention to the =we Ai similar -am-Went-pr oof- language in following rases although not in eminee Om with time approval or disapproval of in- allonetions t'ikt r. Frank I lough Co.. ampols„ 2 C' .1.1 4111. 470. 85 01;11. 467 P.24 =9 (quoting from Vartis v. Rare° Mfg. Cs.. (VIG2) '24t1 ral.App.2d 2-10, •25-s, '2.12 CaLKpor. 7:17 : Thompeam v. l'aeknge 2111104111ftevr 11.99. (111711 22 14.s. /119 ralLftiotr. '2%1 (quoting from Pike). It taw refers to similar language in Thomas From our examination of the entire record we conclude that the error was prejudicial and resulted in a miscarriage of justice. and that the judgment should be reversed (Cal.Const., art. 'I, § 13; see People v. Watson (1956) 46 Ca1.2d 818, 836, 2°' l'.2d 243.) [91 Plaintiffs also contend that the court committed error in its instruction on strict liability (see fn. 3, ante) in another respect, that is by stating to the jury that the "defendant manufacturer of a product is not required under the law so to create and deliver its product as to make it accident proof." They do not take the position that the above language is a misstatement of substantive law but assert that it is "misleading, confusing and prejudicial": plaintiffs rely on Itutigan v. Yellow Cal) Co., supra, 49 Ca1.2d 652. 320 P2d 500. Defendant, on the other hand, seems to have failed to meet the contention head-on, being content with the argument that the instruction is a "correct statement of appli- cable law." 12 As previously indicated the challenged instruction is the introductory language of former 11.AJI No. 9.01 (see fn. 3, ante). We note that former No. 9.01 has been withdrawn by the Committee on ItAll and no longer appears among the currently rec- ommended instructions for products liabili- ty cases. Despite this, and notwithstanding our conclusion that the judgment must be otherwise reversed for the reasons just given, we feel obliged to discuss this issue for the guidance of the court on retrial in the event this or similar language is again requested. v. General Motors Corp. (1971)1 13 ('al.App. 3d 41 4.4 01 Cal.Rptr. 301 where in the eourse of examining an instruction on defective design the court stated that a manufacturer is not required to produce an aecident-free or fool-proof machine. Final- ly reference is made to our tit ...................• • in Cronin v. J. It. E. Olson Corp.. aspen, q ral.311 121. 132-13-1. 101 Valltptr. -133. 7.111 1'.2.1 117,3. wherein we eccoeniZed that the manufacturer was not to he treated us an insurer of its produets. ' '
  • 20. 12 -Ca1.3d 641 PEOPLE cu.. as. Sup., At the outset we must say something about the connotation of the words - acci- dent proof" which are the focus of plain - tiff's challenge. Generally speaking, they import that the product is incapable of having accidents " or not prone " to having them, or is or will be free of accidents." This connotation of course implies that the manufacturer is not guaranteeing or insur- ing that the product will he free of accidents." Butigan was an action for damages for personal injuries sustained by a passenger in a taxicab as a result of its collision with another vehicle. The court, at defendant's request, gave the so-called unavoidable ac- cident instruction, which stated in part: "'In law we recognize what is termed an unavoidable or inevitable accident. These terms du nut mean literally that it was not possible for such an accident to be avoided. They simply denote an accident that oc- curred . without having been proximately jj.76 causetrl2y negligence. . * . . '" (49 Cal. 2d at p. (57, 32.0 l'.2d at p. 503.) We de- cided that the instruction, in addition to being unnecessary, was confusing because the jury "may get the impression that una- voidability is an issue to be decided and that, if proved, it constitutes a separate ground of nonliability of the defendant. Thus they may be misled as to the proper Manner of determining liability, that is, solely on the basis of negligence and proxi- mate causation." (hi. at p. 660, 320 P.2d at p. 305.) The "accident-proof" language, here challenged, although not a model of clarity, simply attempts to convey the concept that a product need not be free from all risk of harm; in other words, it expresses the view that a product need not be found defective simply because an accident has occurred. Following the expression of that v. HITCH 9 IF; cal. t:ptr.II concept, the instruction directs the atten- tion of the jury to the elements which must Ire proved in a products liability action. In the context of the entire institution, we do not believe that the "accident-proof" lan- guage would be regarded as a separate basis of nonliability; in fact, a product defect may or may not exist even though the product fails to be accident proof. We re- gard the "accident-proof" language as an attempt to delineate the outer limits of le- gal responsibility in a products liability ac- tion. Unlike the so-called unavoidable ac- cident instruction in Bufiyan, it does not appear to us that the challenged language, in the context of the entire instruction, would be confusing to a jury in this partic- ular case. We, of course, cannot and do not assess its potential for confusion in the context of anothelr instruction. The judgment is reversed. WRIGH T, C . J ., and McCO MI3, TO - 13R1 LR, BURKE, and CLARK, J J., concur. 13. -1'neif." %leen used as an adjective means . "firm or sticeessful it: reNiNting ear repelling . . . impreettable--often used in cont- inual*.......................... (Intrglar-proof winbws) flootnio- Ionia I . . . . (Webster's Third New. Internat. Intl. (Itar.3 ed.) p. 1517.1 14. :4c for example "accideut-prone- as meaning "having personality traits that predia117 Cal Rot, —111/2 pose to accident ............................................ " (Weleiter'N, op. efts, p. 11.1 1 5 . S e e . T ho ma s v. G e ne ra l M o to rs C o r p . , supra. 1:: ea:App.:141 Sl, SS, Cal.limr. 301, sited in fn. 12, ante. 1 6 . See re fe re nce to Cro nin in fn. 12, a nte. V, _______ 0 star Mint SYSTM r 527 P.2d 361 12 CaI.3d 641 _Line PEOPLE, Plaintiff and Appellant, v . Warner Herbert HITCH, Defendant and Respondent. Cr. 16915. Supreme Court of Califontia, In Rank. Oat. 21, 1974. In a prosecution for driving a motor vehicle while under the influence of intoxi- cating liquor, it appeared that a breath - alyzer test ampoule and its contents and a reference ampoule had been intentionally