Vierra

I dissent. I would affirm the judgment for the reasons expressed by Mr. Justice Devine in the opinion prepared by him for the District Court of Appeal in Vierra v. Fifth Avenue Rental Service (Cal.App.) 27 Cal.Rptr. 843 .

The basic question involved in this case is whether the trial court was justified, under the facts, in instructing on the doctrine of assumption of risk. We have concluded that it was error, serious and prejudicial, and therefore reversible, to have instructed on this doctrine.

Plaintiff Vierra operates a bar and restaurant in a building leased from defendant Berkley. Berkley operated the tools that caused the injury to plaintiff. Defendant Fifth Avenue Rental Service was the renter of the tools involved in the accident.

I At the time the lease for the bar and restaurant was entered into, Berkley, the landlord, who is also a contractor, promised to cut a door through one of the inside walls of the leased premises. Several months later Berkley undertook to perform this promise. He did the work during the day while the bar and restaurant were open for business, and while Vierra and a waitress were on the premises. He did not possess all of the proper tools to perform the work. He requested Vierra to go to the Fifth Avenue Rental Service to rent a sledge hammer, a chisel, and a gad. A gad is an instrument made of steel that is, in effect, a cement drill, used to drill holes in…