Opinion
Rehearing Denied Sept. 7, 1929
Hearing Granted by Supreme Court Oct. 7, 1929
Appeal from Superior Court, Alameda County; Homer R. Spence, Judge.
Action by Martin Ahern, by his guardian ad litem, Theresa J. Ahern, against the Livermore Union High School District of Alameda County. Judgment for plaintiff, and defendant appeals. Reversed. COUNSEL
Earl Warren, Dist. Atty., Ralph E. Hoyt, Chief Asst. Dist. Atty., and Agnes R. Polsdorfer, Deputy Dist. Atty., all of Oakland, for appellant.
Warren H. Pillsbury, of San Francisco, for respondent.
OPINION
PER CURIAM
An action brought by Martin Ahern, through his guardian ad litem, to recover damages for personal injuries alleged to have been caused by the negligence of the officers and employees of defendant school district. A jury returned a verdict for the plaintiff, and, from the judgment entered thereon the defendant, following the denial of a motion for a new trial, has appealed.
The plaintiff at the time he was injured was 14 years of age. He had been a student in the manual training department of the school district since August, 1925, and on December 7th of that year, while operating a power-driven circular saw therein, suffered the loss of the middle and index fingers of the right hand which came in contact with the saw blade. The complaint alleged that the injuries were sustained through the negligence of the defendant in that its officers and employees, without due regard for the safety of the children of the school, failed to have in place a guard over the saw disc; that such guard was a necessary and standard safeguard to prevent injuries from the use of the saw, which was hazardous to operate, particularly to children, without being so guarded, and which fact defendant knew or, in the exercise of proper care, ought to have known; furthermore, that an instructor of the class in which plaintiff was a student, and who was in the employ of the defendant, had authority and the ability to remedy the dangerous condition without the expenditure of school funds, that he knew for a long time prior to the injury that the saw while in an unguarded and dangerous condition was being operated by students in his absence, but that notwithstanding he neglected to remedy the condition or to take such action as was reasonably necessary to protect the students and the plaintiff against the danger. The defendant denied that the injuries were caused by its negligence, alleged that the same were due solely to the negligence of the plaintiff, and also pleaded contributory negligence on his part.
Appellant contends that the allegations of notice or that its officers failed to remedy the dangerous condition of the saw after receiving notice contained in the complaint were insufficient to state a cause of action under section 2 of Act 5619 of the General Laws, and that, in order to recover under section 1623 of the Political Code, it was essential that judgment be first recovered against the district.
The act, which by section 1 limits the personal liability of the trustees for the acts of employees, provides by section 2 that "*** School Districts shall be liable for injuries to persons and property resulting from the dangerous or defective condition *** of buildings, grounds, works and property in all cases where the governing or managing board of such *** school district, or other board, officer or person having authority to remedy such condition, had knowledge or notice of the defective or dangerous condition of any such *** building, grounds, works or property and failed within a reasonable time after acquiring such knowledge or receiving such notice, to remedy such condition, or failed and neglected within a reasonable time after acquiring such knowledge or receiving such notice to take such action as may be reasonably necessary to protect the public against such dangerous or defective condition." Approved June 13, 1923, St.1923, p. 675.
Section 1623 of the Political Code, as amended in 1923, approved May 10, 1923, St.1923, p. 298, provides that "boards of school trustees, high school boards *** are liable as such in the name of the district for salary due any teacher on contract, and for all debts contracted under the provisions of this chapter, and for any judgment against the district on account of injury to any pupil arising because of the negligence of the district or its officers or employees, and they must pay any judgment for debts, liabilities or damages out of the school funds. *** Members of the boards of school trustees and city boards of education shall not be held personally liable for accidents to children going to or returning from school, or on the playgrounds, or in connection with school work."
The material portions of the last section previous to its amendment were the following: "Boards of trustees are liable as such, in the name of the district, for any judgment against the district for salary due any teacher on contract, and for all debts contracted under the provisions of this chapter and they must pay such judgment or liabilities out of the school moneys to the credit of such district," etc.
We are satisfied that the complaint was sufficient under the provisions of the general law, and we find no merit in the second objection. A school district is a public corporation (Estate of Bulmer, 59 Cal. 131; Hughes v. Ewing, 93 Cal. 414, 28 P. 1067; Kennedy v. Miller, 97 Cal. 429, 32 P. 558) against which actions will lie directly (Barber v. Mulford, 117 Cal. 356, 49 P. 206). Actions to enforce its liabilities may be brought against its board of trustees as such (Hancock v. Board of Education, 140 Cal. 554, 74 P. 44), or against the latter in the designated name of the district (section 1575, Pol.Code); and no judgment as a condition to a proceeding against the trustees as such need be shown; the effect of the last section and section 1623 of the Political Code being, as was held in Hancock v. Board of Education, supra, to authorize the trustees to sue and be sued and "make the board responsible for judgments" obtained against the district.
Based upon the provisions of Act 5619, General Laws, appellant offered the following instruction, which was refused: "I instruct you that before you can render a verdict against the defendant in this case the following facts must be proved by a preponderance of the evidence: (1) That a dangerous or defective condition existed in public property belonging to defendant; (2) that the government or managing board of such defendant, or an officer or person having authority to remedy such condition, had knowledge or notice of such defective or dangerous condition of such property, and (3) that such governing or managing board or officer or person having authority to remedy such condition failed or neglected within a reasonable time after acquiring such knowledge or receiving such notice to remedy such condition, or failed and neglected within a reasonable time after acquiring such knowledge or receiving such notice to take such action as may be reasonably necessary to protect the public against such dangerous or defective condition."
Respondent contends that the Code section as amended imposes the same legal responsibility for negligence upon school districts as that resting upon private corporations, and that the instruction was properly refused. It is conceded by counsel that the legislation in question followed actions against the trustees in several districts seeking to hold them personally liable for injuries to pupils. The acts were adopted at the same session. Act 5619 was approved on June 13, 1923, and was the last to pass the Legislature. The amendment to the section of the Political Code was approved on May 10, 1923, and both acts took effect on the same day. Both relate to the same subject, namely, the liability of a district for negligence. Act 5619 prescribes the conditions under which liability shall attach, as to which the amended section is silent; while the latter, in addition to providing for the enforcement against the district of liabilities both for torts and upon contracts by actions against the trustees of the district as such, prescribes, subject to the constitutional limitation, how judgments shall be paid. Under such circumstances the acts should be read together (Old Homestead Bakery v. Marsh, 75 Cal.App. 247, 258, 242 P. 749), and, when so read, are not inconsistent. While the Code section refers to judgments for injuries due to negligence, and provides that the trustees as such shall be liable therefor, the provision has no other effect than to make the board responsible for such and other judgments entered against the district (Dawson v. Tulare Union High School Dist. [Cal.App.] 276 P. 424; Hancock v. Board of Education, supra) to the extent that the section directs that such judgments be paid from school funds. We are satisfied that the provisions of Act 5619, General Laws, determine the liability of a district for the negligence of its officers, and that the proposed instruction correctly stated the law.
The following instruction was given at the request of the plaintiff: "If you find that defendant district or any of its officers was negligent, which negligence was the proximate cause of plaintiff’s injuries while a pupil in the defendant’s school without any negligence on the part of the plaintiff proximately contributing thereto then and in that event defendant is liable in damages to this plaintiff."
It being our conclusion that the responsibility of the district for the negligence of its officers or employees is measured by the above act and not by the rule applicable to private corporations, the above instruction was erroneous.
The plaintiff was asked over objection whether the guard on the day of the accident was in place and whether he had ever seen the guard on the saw. His answer to both questions was in the negative. Defendant contends that the questions were intended to convey the impression that the guard was customarily off the saw, and that the ruling thereon was erroneous and prejudicial.
The evidence showed a condition likely to have attracted or to have been called to the attention of the instructor, and was a circumstance relevant to the question of his knowledge of the danger. Wigmore on Evidence, § 252; Dotton v. Albion, 50 Mich. 129, 15 N.W. 46; Noyes v. Gardner, 147 Mass. 505, 18 N.E. 423, 1 L.R.A. 354; Dawson v. Tulare Union High School Dist., supra. If appellant desired the evidence to be restricted, an instruction to that effect should have been asked.
A safety engineer was permitted to testify to the general practice with respect to guarding power saws in wood-working establishments, and gave his opinion as to the dangerous character of an unguarded circular saw. It is claimed that the evidence was incompetent and tended to prejudice defendant’s case in the minds of the jury. If incompetent, as claimed, the evidence was harmless, as defendant conceded throughout the trial that the guard was necessary, contending however, that a sufficient guard had been furnished and kept on the saw.
The same witness testified to a conversation with the instructor some months after the accident. This is claimed to have been hearsay and consequently inadmissible. The evidence was admitted to contradict that given on a material matter by the instructor while a witness, and was properly admitted.
Appellant contends that the evidence was insufficient to support a finding that defendant district was negligent, or that plaintiff was not guilty of contributory negligence, as alleged. After a careful review of the testimony we are satisfied that the evidence was sufficient to support a finding against the district under the rule which we believe the Legislature intended to prescribe, and that, considering the age of the plaintiff and his inexperience, the conclusion of the jury that he was not negligent was justified.
In the matter of the instructions, however, we are convinced that a broader rule respecting the liability of school districts for negligence than the law sanctions was applied by the court, and that the necessary effect of the error was to mislead the jury.
For this reason, the judgment is reversed.