36 Cal. App. 2d 433 | Cal. Ct. App. | 1940
The plaintiff commenced an action against the defendants to recover damages for injuries sustained when he fell or was thrown from a freight car. After a trial before the trial court sitting with a jury, the latter returned a verdict in favor of the plaintiff. Prom that judgment the defendants have appealed.
At San Jose the defendants maintain a freight yard. It is in the form of a crescent. The portion of the freight yard involved in the ease at bar extends in a general direction from north to south. On the wesiern side a spur track has been inserted which serves certain industries, among others the General Box Distributors. That company has warehouses and a lumber yard on the western side and immedi
The defendants contend they were not negligent. They first claim that plaintiff, after he pulled in the roller, was a licensee and that they owed him no duty except not to act wilfully or wantonly. But both Henry and Stockdale knew, or from facts within their knowledge should have known, of the plaintiff’s presence in the car. Therefore the defendants owed to him the duty to conduct their activities with reasonable care. (Hamakawa v. Crescent Wharf etc. Co., 4 Cal. (2d) 499, 501 [50 Pac. (2d) 803].) As shown
The evidence also presented a question of fact as to whether under all of the circumstances then existing the train crew should have moved the car at all. The above-mentioned statement of Ellis at least tends to show he was aware it was the duty of those switching cars on commercial spurs and side tracks to use extra care. Manifestly, the first thing to note was the condition of the load, if any. It is statutory that defendants were bound to use at least ordinary care (Civ. Code, sec. 2114), but the question still remained what was ordinary care. Henry, the switch foreman, was on the ground, went to the car, told the plaintiff the ear was to be moved, passed on to the next car, and was within a few feet of the door of the car when it was moved. He testified he did not know the plaintiff was in the car when it was moved. Did he close his eyes? As he passed he observed the condition of the load. He testified he saw no danger. Did he close his eyes to a patent danger? Or, if his judgment that
The agents of the defendants testified it was impossible for them to switch the cars and use less force than they did. If so, they knew that fact before they acted. They knew the condition of the car and all of the circumstances. They were in control. If the car was not in a condition that it could be moved without injury to plaintiff or the contents of the car, the defendants had the right to refuse to act until the car was conditioned—the freight stabilized and all persons ejected if necessary. Whether they negligently failed to exercise that power was a question for the jury. If the car as it stood in defendants’ switch yard, by the exercise of due care, could have been moved without injury, the question whether at the time of the accident the defendants exercised due care was also a question for the jury.
The defendants claim the plaintiff was, as a matter of law, guilty of contributory negligence, because (1) he did not get out of the ear, (2) he did not support the lumber, and (3) he did not take a position of safety in the south end of the car which was vacant. No one of those specifications is convincing. In Seller v. Market Street Ry. Co., 139 Cal. 268, at page 271 [72 Pac. 1006], the court said: “It has often been said by this court that it is very rare that a set of circumstances is presented which enables a court to say, as a matter of law, that negligence has been shown. As a general rule, it is a question of fact for the jury, an inference to be deduced from the circumstances of each particular case, and it is only where the deduction to be drawn is inevitably that of negligence that the court is authorized to withdraw the question from the jury. This is true even where there is no conflict in the evidence, if different conclusions upon the subject can be rationally drawn therefrom. If the conceded facts are such that reasonable minds might differ upon the question as to whether or not one was negligent, the question is one of fact for the jury. These rules are so well settled as to render it unnecessary to here do more than state them. Citing authorities.” (Stoutimore v. Atchison, T. & S. F. Ry. Co., 338 Mo. 463 [92 S. W. (2d) 658], involved the claims
The next contention made by the defendants is that the trial court erred in giving an instruction on the doctrine of the “last clear chance”. They concede the instruction was properly worded. However, they contend it was inapplicable to the facts. In that connection they set forth five different elements as being comprised within the instruction. We think the evidence hereinabove set forth justified the court in giving the instruction on the assumption there was some evidence to sustain each element so set forth. (Chesapeake & O. Ry. Co. v. Hudson, 169 Ky. 580 [184 S. W. 884, 886, 887].)
Again it is contended that the court erred in giving certain instructions at the request of plaintiff upon the duty of the agents of the defendants to orally warn the engineer. It is asserted that one of the instructions assumed as a fact that the ground crew did not orally warn the engineer. We think the criticism of the instruction as assuming a fact is not well founded. However, if it did assume the fact there
The defendants copied the last sentence of the third paragraph in 13 California Law Review, page 72, and requested the trial court to give it as an instruction. As will be noted said sentence purports to define a trespasser, a licensee, and an invitee. The trial court struck out the first clause and gave the remainder as an instruction. In striking out the first clause the trial court doubtlessly aimed to omit all regarding a trespasser. However, it included the verb contained in the sentence. The portion as given consisted of words without making a complete sense. The defendants call these matters to our attention and claim the trial court erred. That there was a technical error will be conceded. However, the trial court gave another instruction which fully covered the subject. The defendants contend it did not because, as they claim, admitting plaintiff was an invitee while unloading the lumber, he became a licensee while the cars were being switched. Admitting, solely for the purposes of this opinion, such to be the fact, as we have shown above the defendants were bound to “ ... conduct its activities with reasonable care for his safety only after it knew or from facts within its knowledge should have known of the plaintiff’s presence”. (Hamakawa v. Crescent Wharf etc. Co., supra.) The record discloses that the instruction complained of, when read in connection with the other instructions that were given, was not prejudicial to the rights of the defendants.
The defendants further contend that the trial court erred in allowing the jury to speculate and guess in regard to certain issues of fact. They assert there was no evidence to show whether the lumber fell by reason of the acts of the
The defendants make numerous additional points and contentions. We have carefully examined the entire cause, including the evidence, and are of the opinion that no error complained of has resulted in a miscarriage of justice.
The judgment is affirmed.
Nourse, P. J., and Spence, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on February 2, 1940, and an application by appellants to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on February 29, 1940. Edmonds, J., voted for a hearing.