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, in cluding

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 6 2 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 e very 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 i n g C h ie f J u s t i c e . t i f f s , v i e w e d f a vo r a b l y t o t h e i r c a u s e , w a s

s u f f i c i e n t t o s u p p o r t a j u r y ve r d i c t f i n d i n g O n J u l y 1 5 , 1 9 6 4 , a t 3 : 1 0 a . m . , R o b e r t

t h a t d e f e n d a n t w a s l i a b l e t o p l a i n t i f f s f o r P i k e w a s k i l l e d w h e n h e w a s s t r u c k b y a

n e g l i g e n t l y d e s i g n i n g t h 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 i c h

w a s d e f e n d a n t w a s s t r ic t l y l i a b le t o p l a i n t i f f s b e i n g u s e d i n t h e c o n s t r u c t i o n o f

t h e O r o - f o r d e f e c t s i n t h e p a y d o z e r c a u s i n g d e c e v i l l e D a m . P i k e w a s w o r k i n g t h e

n i g 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 b y 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 t r u c k h i m . P ik e f o r a b o u t f i ve m i n u t e s , l o o k e d t o t h e D e c e d e n t ' s w i d o w a n d m i n o r c h i l d r e n r e a r t o a s c e r t a i n i f i t w a s c l e a r , b u t h e d i d

b r o u g h t t h i s a c t i o n f o r w r o n g f u l d e a t h n o t s e e P i k e , w h o w a s s t a n d i n g 3 0 t o 4 0 f e e t b e h i n d t h e ve h i c l e a n d w e a r i n g a l u m i n o u s a g a i n s t t h e m a n u f a c t u r e r o f t h e

p a y d o z e r . jac ket. The opera tor test if ied 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 visib le.

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 I r . ' : • ,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 ato rwo rkin g in the vic in ity . Th e p ay -dozer

h ad no rea rview m irro rs a r id no au d ib le

o r vis ib le b ackup warn in g s ign a l.

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 in stallation

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 accid ent-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 ] Ap p ly in g the fo rego in g s t an d ard s to

the cas e at bar , i t w• ou ld js eem a ju ry ,J 71

cou ld conc lude that a m anufacturer of a

v eh ic l e in tended to g o backward s hou ld

hav e been aware that the m ach ine ' s

s tructural des ig n m ade i t im pos s ib le for

the operat or to s ee a m an s tand ing any -

where between one and 4 8 fee t beh ind the

m ach ine and in i ts di rec t path . And ,

hav ing s o found , a jur y cou ld dec ide that a

m anu facturer who f ai l ed to c orrect th i s

def i c i ency wi th two rea rv iew m irrors , or

an y co mp arab le d evice , v io la t ed h is d u ty to

p rod u ce a p ro du c t reas onab ly s afe for i ts

in tended us e . Al thoug h that res u l t m ay not

hav e been com pel l ed , the ev idence was

s u ff i c i en t to jus t i fy s uch f inding i , 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, th e

circuit court reversed a summary judgment

for defendants under somewhat comparable

circumstances. While p la int iff was look- ing into the malfunctioning in the bridge

of a crane, the operator moved the crane

and cru s h ed h im aga in s t t h e cab . Th e

operator test if ied that he could not see

pla intiff 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

res tricted. On the bas is 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 m irro rs wou ld h ave made d eced en t

vis ib le t o th e op erato r lon g b efo re th e

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 ' pos ition that they were wrong- fully nons uited. We held there that an

iss ue of jury dimens ions was rais ed 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

tes tified 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 purchas e

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 m irror that revea led to the dr iver

only the centra l th ird of the [f ront]

b u m p er . Su r e ly d e f en d an t b o re an o b - ligation to equip the truck so as to provide

for its safe operation and avoid danger to

it s ex p ected cu stom ers , who were s mall

ch ild ren . * * * Th e t es t imo ny s ho wed

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 f e t y . " ( V a r a s v . B a r c o M f g . 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 ha ve gone to the

jury. \Ve now discuss their cause of action

based on a strict liability concept.

California has pioneered in the de velop-

ment and extension of the theory that

ma n u fa c t ur e r s a r e s t r ic t ly l ia b le in to r t fo r

in ju r ie s to pe r s o ns c a use d b y de f e c t s in

th e i r p r o d uc ts . ( Se e E sc o la v. C oc a Co la

B o t t l in g C o . ( 1 94 4) 2 4 Ca l . 2d 4 53 , 4 61 -

46 8 , 15 0 P . 2 d 4 3 6 , c on c u r r in g op in io n o f

Tr a yn or , J . ) . E n ou r la n d ma r k op in io n 1 4 7 5

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 physica l

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 de fect

of design which made it unreasonably

dangerous for its intended use, in that the

operator could not see persons working

behind him with in 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 ha ve invo lved defects

in design. However, there is no rat iona l

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 -

t iff sued the owner of a launderette for

in jur ies susta ined while us ing one of the

wash ing machines in the estab l ishme nt.

Pla in t iff wa ited se vera l minu tes t f ter 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 e vidence

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 e vidence 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 re versed 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 pre se nt c ase invo lve s a c la ime d

defe ct in de s ign r athe r tha n a de fec t 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. es tablished 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.

C A L I F O R NI A R EP O R T E R 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 fo r reversal.

4. Appeal and Error <1064.1(8)

Where one instruction, relat ing to

products liability , er roneously 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,

relat ing 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, Yo lo 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 fata lly 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.

Deced en t was ki l led b y th e c ran e s ho r t ly

a f t e r h e h ad s ign a led th e op era to r th a t t h e

b oo m co u ld b e s wun g in to a n ew po s it io n .

As th e boo m was ro t a t in g, t h e op era to r fe lt a

" th um p " an d imm ed ia t e ly s top p ed th e c ran e .

No on e ob s erved th e acc id en t bu t t h e reco rd

es t ab lis h es t h a t d Asd en t was as s . : s t ru ck b y

th e cou n te rweigh t and c ru sh ed aga in s t th e

b as e o f th e c ran e . '

that it may not be found defective simply

because an accident has occurred and, in

context of entire instruction

t. The reason for I leve&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 o f 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 fol lows: "The

defendant man torturer of a product is not required under the laic so to create and deli rcr

i ts p roduct nv to make i t acc ident proof; how:

ever, it is subject to liability to the plaintiffs

4 117 CALIFORNIA REPORTER 12 Ca1.3d 668

Under this

instruction, the

court info rmed the iury that " [tJhe

defendant manufacturer of a product is no t

required under the law so to create and

deliver i ts product as to make i t accident

proof . . . . " The same instruction also to ld

the jury that in o rder to establish

defendant's liabi li ty, plaintiffs had the

burden of proving, among o ther things,

that the decedent was "unaware of the

claimed defect" and that the "defect, if i t

existed, made C!ie product unreasonab ly

dangerous and unsafe fo r i ts

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 whi le 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•hat ily ilan iermur nai l unsafe for i ts intended use." (f lakes 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 se t f o rth the per -

t i nent language i n i ta lics . (S ee f n. 3 .

ante.)

In accordance with defendant's assertion

of the defense of assumption of the risk,

the court a lso gave at defendant's request

IIAJI No . -1.30 in a modif ied fo rm' : \t the

same time, at the request of plainti f fs. the

court direCted the jury that i t must

consider the "necessities" of the decedeil t'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 voluntari ly 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. " I i i 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 al l facts

necessary to establish that assumption as I Pia VC already defined i t 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 thereafter have vo luntari ly 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

ordinari ly a reasonably prudent person would

avoid, the towessitiem of such a sitimt ............... in solar oar 11111 17 .1114 the cam' ..... I I

taat hr ' au 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. rtnintif fs re quested . bu t the court refused .

an inst ruct ion dire ct ing t he ju r y to f inc h

whether defe ndant so ld i ts product " in a de-

fect ive vo mli t io 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 specula te 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 o f the

instruction has been to mislead the jury and

whether the error has been preju dicial so as

to require reversal depends on all the

circumstances of the case, including the

evidence and the other instructionstiv en. 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 plaintif f the burden of

proving "that the deceased was unaware of

the cla imed defect" (see fn. 3, ante), which

instruction, as we have a lready 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 plaintif f had the

burden of proving that he had not assumed

the risk of the claimed defect. The almost

identica l 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 . Pl a i n t i f f s r e qu e s t e d au i ns t ru ct io n o mi t t i ng

t h i s e l e m e nt a s a pa rt o f t he i r a f f i r m a t i ve

c a s e bu t t he i ns t ru ct io n w a s r ef u s e d .

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 liabili ty 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 C al.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. I lowcirr. 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) or 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

supporte d by the eviden ce, we mu st assume

that the jury acce pte d the view most fa -

vora ble to the respon dent. Howe ve r, in

determining whether or not the inst ruc tions

given a re correct, we must assu me that the

jury might have bel ieve 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 I eee4ratt wv.tM not

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 sl ireetit our a ttenti on to th e

=we Ai similar -am-Went-pr oof - languag e in

fol lowing rases a l thoug h not i n emin ee Om

with time approval or disapprova l 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 ent ire record

we conclude that the error was prejudicial

and resulted in a miscarriage of just ice. 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 Plaint iffs also contend that the court

committed error in its instruct ion on strict

liabil ity (see fn. 3, ante) in another respect ,

that is by stat ing 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 posit ion

that the above language is a misstatement

of substantive law but assert that it is

"misleading, confusing and prejudicial":

plaint iffs rely on Itut igan 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

instruct ion is a "correct statement of appli -

cable law." 1 2

As previous ly ind icated the challenged

instruct ion is the introductory langua ge 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 in struct ions for products l iabi l i -

ty cases. Despite th is, and notwith sta nding

our conclusion that the judgment must be

otherwise reversed for the reasons just

given, we feel ob liged to d iscuss th is issue

for the gu idance 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 sta ted that a

manufacturer is not required to produce an

aecident-f ree or fool -proof machine. Fina l - 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 mus t 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 recogn ize 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

j j. 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 o f 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.

W R IGH T, C . J . , an d M cC O MI 3 , TO - 13R1 \LR, BURKE, and CLARK,

J J., concur.

13. -1'neif." %leen used as an adjective means .

"firm or sticeessful it: reNiNting ear re pelling

. . . impreettable--often used in cont- inual* .......................... (Intrglar-proof winbws) 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 . See . T h o ma s v . G e n e r a l M o t o r s 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 nc e to Cro nin in fn . 12 , a n te .

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