
    [Civ. No. 3286.
    Third Appellate District.
    June 14, 1927.]
    GEORGE McCAMISH, Appellant, v. W. R. GROFF et al., Respondents.
    
       Negligence—Employer and Employee—Defective Machinery— Personal Injuries—Pleading—Complaint.—In an action for damages by an employee for personal injuries sustained while operating a tractor, a complaint which failed to allege that the injury resulted from the operation of the tractor in its defective condition, but that plaintiff was injured at a time when the tractor was stopped and he was engaged in the simple work of cleaning the tiller wheel with an iron crowbar, did not state a cause of action.
    (1) 39 C. J., p. 934, n. 53.
    APPEAL from a judgment of the Superior Court of Colusa County. Ernest "Weyand, Judge.
    Affirmed.
    The facts are stated in the opinion of the court.
    Atran & Sheets for Appellant.
    Thos. Rutledge for Respondents.
   FINCH, P. J.

The complaint alleges that the plaintiff was employed by the defendants, “during the night shift,” as engineer and operator of a seventy-five horse-power tractor; that the “tractor was guided by a tiller wheel, which moved to the right or left as the operator gave the direction in a circular frame to which was attached a scraper, devised for the purpose of scraping and keeping clodded dirt, weeds, stones, straw, and other obstructions from sticking to the steel tread surface of said tiller wheel”; that, at the time of the injury complained of and for a long time prior thereto, “said scraper was broken, destroyed and no longer in use upon said tractor, all of which was known at said time to the defendants”; that the “defendants did prior to and at the time the injury . . . was received, carelessly and negligently require, permit and cause said Geo. McCamish ... to operate said tractor in said defective condition and at such times as said tiller wheel ceased to revolve or turn and became clogged, as aforesaid by reason of clodded dirt, weeds, straw, stones, and other obstructions clinging thereto, to remove and pry the same from said tiller wheel by the use and aid of an iron crowbar”; that the “tractor in said defective condition was extremely dangerous, unsafe and hazardous to operate” and when the tiller wheel so became clogged it was necessary “that the operator immediately stop said tractor and go around in front of same and lean over the circular frame in which said tiller wheel turned and revolved and by the use of, and holding a crowbar jam said crowbar into the clogged dirt, weeds, straw, stones, and other obstructions caked and sticking to the steel tread surface of said tiller wheel and pry, dig and scrape said clogged dirt, weeds, straw, stones, and other obstructions therefrom, in the nighttime when said cleaning and scraping of said tiller wheel could be seen only dimly and with great difficulty, and in so doing the operator was apt to jam the metal crowbar into the metallic portion of said tractor and said tiller wheel, thereby causing steel splinters to fly back into the face and eyes of said operator, ... all of which at said time was well known to the said defendants”; that at the time of the injury “the defendants negligently and carelessly permitted, caused and required said Geo. McCamish to operate said defective tractor, . . . and upon said tiller wheel becoming clogged, ... to get off from said tractor, go around in front thereof and with an iron crowbar in his hands, in the darkness of the nighttime, to lean over the circular frame in which said tiller wheel moved, and to pry, dig and scrape said clodded dirt, weeds, straw, stones and other obstructions from the steel tread surface of said tiller wheel and in so doing a splinter of steel was torn loose from the said metallic running tread of said tiller wheel and deflected and ricocheted into the left eye of the said Geo. McCamish thereby causing him to lose his sight in said left eye and to lose partial sight in his right eye.”

The defendants demurred to the complaint on the grounds of insufficiency of fact to state a cause of action and uncertainty as to the manner in which the defendants’ alleged negligence contributed to the injury. The trial court sustained the demurrer and gave the plaintiff ten days in which to amend. The plaintiff elected to stand upon the complaint and a judgment of dismissal was entered. This appeal is from the judgment.

The only ground urged for a reversal of the judgment is that “the failure of the defendants to keep in use and repair the scraper device was the proximate cause of the injury.” In sustaining the demurrer, the trial court said: “The improperly equipped machine was being worked and no accident occurred in the working, but the machine was stopped as to its working and the operator was doing an independent act and while doing this independent act was then injured. ”. It is alleged that it was ‘ ‘ extremely dangerous, unsafe and hazardous” to operate the tractor in its defective condition, but there is no allegation that any injury resulted from such operation. If it be conceded that the defendants were negligent in failing to equip the tractor with an effective scraper for the tiller wheel, “there is an entire absence of a sequential relationship of cause and effect between this negligent omission and the injury.” (Marovich v. Central California T. Co., 191 Cal. 295, 303 [216 Pac. 595, 599]; Lammers v. Pacific Electric Ry. Co., 186 Cal. 379, 385 [199 Pac. 523]; Schwartz v. California Gas etc. Co., 163 Cal. 398, 402 [125 Pac. 1044].) The injuries involved in the cases relied on by appellant resulted directly from the operation of defective machines or instrumentalities. In this case the alleged danger and hazard of operating the tractor in its defective condition ceased with the cessation of its operation, and at the time of the injury the plaintiff was engaged in the simple work of cleaning the tiller wheel with a simple tool.

The judgment is affirmed.

Thompson, J., pro tem., and Plummer, J., concurred.  