[Civ. No. 2197. Second Appellate District.-February 13, 1917.]

O. P. GIDEON, Appellant, v. P. A. HOWARD et al., a Copartnership, etc., Respondents.

NEGLIGENCE-BREAKING OF DEFECTIVE ROPE-INJURY TO EMPLOYEE OF BRIDGE COMPANY-ERRONEOUS NONSUIT.-In an action to recover damages for injuries sustained by an employee of a bridge construction company from the breaking of a rope while pulling away a board mold from around hardened concrete, it is error to grant a motion for nonsuit at the close of the case, where the evidence tends to show that the rope was known to the defendants to be worn and weakened to an extent that rendered it unfit for the purpose.

APPEAL from an order of the Superior Court of Los Angeles County denying a motion for a new trial. J. P. Wood, Judge.

The facts are stated in the opinion of the court.

Miller & Miller, and E. B. Drake, for Appellant.

Flint, Gray & Barker, and Gray, Barker & Bowen, for Respondents.

SHAW, J.-In this action plaintiff sought to recover damages for personal injuries alleged to have resulted from the negligence of defendants as copartners. At the close of the evidence, defendants offering none, the court, at their request, instructed the jury to render a verdict for defendants, which being done, judgment followed in accordance therewith.

The appeal is from an order of court denying plaintiff's motion for a new trial.

The question presented is one of law as to whether or not there was any substantial evidence as to facts determinative of the case upon which the jury could have properly found for plaintiff.

The evidence tends to establish the following facts: Plaintiff was an employee of defendants, who were contractors engaged in the erection of a bridge, in the construction of which wooden molds or forms were made into which concrete was deposited, and after it set and hardened these molds or forms

were detached therefrom. As such employee, plaintiff, with others, not only worked as a carpenter in making and installing these forms, but in detaching them from the hardened concrete walls by various means, among which was that of attaching thereto ropes provided by defendants and pulling them loose by hand. At the time in question, when plaintiff sustained the injuries of which he complains, two men had thus, for the purpose of removing one of the molds, attached a rope thereto, and, being unsuccessful in breaking it away, called upon plaintiff and another, who were at work on the bridge, to aid them in pulling it away. They responded, and their united strength applied in pulling upon the rope caused it to break, as a result of which plaintiff, with the others, all of whom were at the time on the ground, was precipitated backward into a depression some eighteen inches deep to a point ten or twelve feet distant, where he fell upon a stump, the others falling upon him, and, in some way undisclosed by the record, was injured. The rope was a five-eighths or threefourths inch in size and about forty-five feet in length. Some three or four days prior to the accident, plaintiff, while using this rope on a scaffold some forty feet from the ground, discovered that it was badly worn, weakened, and cut, for which reason he removed it from the swing he was working on, came down, and informed Mr. Crump, the superintendent in charge of construction, of its condition, telling him that the rope was "not fit to work on," and threw it upon the ground under an abutment of the bridge, from which place his coemployee, when requiring a rope for use in detaching the mold, secured and used it for the purposes aforesaid, which fact, however, was unknown to plaintiff until after the accident.

At the time in question a statute then in force (Stats. 1911, p. 796), provided that in actions by employees to recover for personal injuries based upon want of reasonable care of the employer, contributory negligence of the employee should not bar a recovery where such negligence was slight and that of the employer, by comparison, gross; nor, as provided by the same statute, did the fact that the employee assumed the risk, or that the i. jury was due to the negligence of a coemployee, constitute a bar to his recovery. Since, therefore, negligence on the part of the plaintiff or that of a fellow-servant is not involved, the sole question presented by the record is whether or not there was any substantial evidence introduced from

which the jury might have found that defendants were guilty of negligence in furnishing a defective rope for plaintiff's use in pulling away the concrete mold. Not only did the evidence tend to show that the rope was supplied by defendants, but such fact is admitted by the answer, which denied only that they negligently furnished the same. The proximate cause of the injury was the breaking of the rope used by plaintiff, which use was within the scope of his employment. It was the duty of defendants to exercise reasonable care to provide their employees with safe appliances in the performance of the work required of them, and under the facts here presented the rope was an appliance which the evidence tends to show was, with defendants' knowledge, worn and weakened to an extent that rendered it unsafe for the purpose.

There is no merit in respondents' contention that the stump upon which plaintiff fell, and not the breaking of the rope, was the proximate cause of the injury. It is reasonably certain that but for the breaking of the rope plaintiff would not have fallen backward upon the stump and his coemployees would not have fallen upon him. But it may be that falling upon the stump contributed nothing toward his injuries; the record is silent upon that point. It might with equal logic be claimed that where a defective cable used in hoisting one to the top of a building breaks, precipitating him upon a pile of stone underneath, the pile of stone, and not the breaking of the cable, was the proximate cause of his injury.

It is further claimed that the circumstances were such that the defendants could not reasonably have anticipated an injury resulting from the breaking of the rope. This and the question as to whether or not the injury sustained by plaintiff was due to causes which men in defendants' position could, in the exercise of ordinary prudence, reasonably have foreseen and guarded against, are matters which, in our opinion, should, upon the record presented, have been submitted to the jury.

The order denying plaintiff's motion for a new trial is reversed.

Conrey, P. J., and James J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 12, 1917.

[Crim. No. 663. First Appellate District.-February 14, 1917.]

THE PEOPLE, Respondent, v. ANTONE FODERA, Appellant.

CRIMINAL LAW-FAILURE TO STOP AND RENDER ASSISTANCE UPON AUTOMOBILE COLLISION-EVIDENCE-REPUTATION FOR KINDNESS AND GENTLENESS.-Upon a charge of violating section 367c of the Penal Code, requiring drivers of automobiles colliding with other vehicles to stop and render assistance to the occupants of the vehicle collided with and who may have been injured by such collision, it is within the proper bounds of cross-examination to ask witnesses produced by the defendant who had testified as to his good reputation for kindliness and gentleness whether they had ever heard that the defendant had been arrested for picking chickens alive, or that he had been arrested for running down a boy or man, or that he had been arrested for unlawfully killing an elk.

ID. PREVIOUS ARRESTS AND FINES FOR UNLAWFUL SPEEDING.-No prejudicial error can be predicated upon the action of the district attorney in making, or of the court in permitting, inquiry as to whether the character witnesses for the defendant knew of his arrests and pleas of guilty and fines for unlawful speeding, where no assignment of misconduct was made to the questions, and there was no request for admonition or instruction to the jury to disregard the evidence.

ID. SELLING OF STOLEN AUTOMOBILES-MISCONDUCT OF DISTRICT ATTORNEY-LACK OF PREJUDICE.-No prejudicial error can be predicated upon the misconduct of the district attorney in asking the character witnesses called by the defendant as to whether they had heard it discussed that the defendant was under investigation by the police department for the selling of several stolen automobiles, where objections were sustained to the questions, no request made to the court to admonish or instruct the jury to disregard the misconduct, and the court of its own motion instructed the jury to disregard questions which contained insinuations against any party to the action.

ID. VISITING MEMBERS OF BLACK HAND SOCIETY.-Prejudicial error cannot be predicated upon the misconduct of the district attorney in asking a witness whether he ever heard discussed that on the day of the crime the defendant was visiting at the home of a person who had been arrested as a member of the Black Hand Society, where the defendant allowed the question and answer to stand and made no request for the jury to be instructed to disregard the same.

[D. KNOWLEDGE OF COLLISION-ELEMENT IMPLIED-CONSTITUTIONALITY OF SECTION 367c, PENAL CODE.-Section 367c of the Penal Code is

not unconstitutional because it does not expressly embody in its phraseology words limiting its application to those persons who knowingly cause their vehicles to collide with those occupied by others, as the element of knowledge of the fact of the collision is necessarily to be implied from the requirements of the act to the effect that drivers of such vehicles must stop and render aid to those who may possibly have been injured in the collision.

ID. DISCLOSURE OF NUMBER OF COLLIDING VEHICLE-NAME AND ADDRESS OF DRIVER. Such section is not unconstitutional in requiring the driver of a colliding vehicle to give the number of his machine and his name and address, as such requirement does not compel him to be a witness against himself in violation of section 13 of article I of the constitution.

APPEAL from a judgment of the Superior Court of Santa Clara County, and from an order denying a new trial. W. A. Beasly, Judge.

The facts are stated in the opinion of the court.

W. E. Foley, and Devoto, Richardson & Devoto, for Appellant.

U. S. Webb, Attorney-General, John H. Riordan, Deputy Attorney-General, Arthur M. Free, District Attorney, and Archer Bowden, Deputy District Attorney, for Respondent.

LENNON, P. J.-This is an appeal from a judgment of conviction of the defendant upon the charge of a violation of section 367c of the Penal Code, requiring drivers of automobiles colliding with other vehicles to stop and render a sistance to the occupants of the vehicle collided with and who may have been injured by such collision, under penalties which render the act or neglect of such drivers in failing or refusing to comply with such requirements a felony.

The facts of this case immediately preceding, attending, and succeeding the collision are substantially these: On the evening of October 31, 1915, a little after sunset, the defendant was proceeding northward along the state highway near the town of Mayfield, in the county of Santa Clara, on his way home to San Francisco from Coyote, in that county, to which place he had made the trip earlier in the day. There were four companions with the defendant in the car, which