Pittman

Plaintiffs, father and mother respectively of Keith Pittman, a minor aged 13 years, filed this action for the wrongful death of their son. It is alleged that as a result of defendants’ negligence in failing to properly enclose an oil well derrick owned and operated by them, the minor was permitted to climb upon and fall therefrom receiving injuries which resulted in his death. In their answer defendants alleged, among other things, affirmative defenses of contributory negligence and assumption of risk.

Motions for summary judgment were granted on May 15, 1973, in favor of defendants and an order dismissing the action was filed May 24, 1973. On July 17, 1973, plaintiffs filed a notice of appeal, etc., from the “Summary Judgment and Order of Dismissal entered May 24, 1973.” On August 21, 1973, a formal judgment was entered in favor of defendants. Despite the irregularities noted we shall deem the appeal to have been properly taken from the summary judgment. (Code Civ. Proc., § 437c; rule 1(a), Cal. Rules of Court.)

It is contended on appeal that the trial court’s misconception of the summary judgment procedure deprived plaintiffs of a fair trial in that de fendants’…