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District Court of Appeal, First District, Division 1, California.


Civ. 15536.

Decided: November 16, 1953

Bronson, Bronson & McKinnon, San Francisco, for appellants. James F. Boccardo, San Jose (Edward J. Niland, Santa Clara, of counsel), for respondent.

Plaintiff brought this action to recover damages for injuries suffered by him while on the premises of the Richmond Chase Company as an invitee. He claims that the injuries were caused as the result of the negligent operation of certain machinery by the employees of the corporation. He joined as defendants the corporation, and Castro, Silva and Rouyet, three employees of the company. The jury brought in an unanimous verdict against all defendants in the sum of $8,281. From the judgment on this verdict all of the defendants appeal.

The major contention of the appellants is that the evidence is insufficient to support the judgment, a point inextricably interwoven with the contention that the trial court erroneously instructed on the doctrine of res ipsa loquitur. It is urged that such doctrine, as a matter of law, was not applicable to the facts involved. Appellants Silva and Rouyet, in addition, urge that there is no evidence at all to support the judgment against them. In their brief and on oral argument counsel for these appellants stipulated that if the judgment is reversed only as to Silva and Rouyet, these two appellants waive any right to costs on appeal.

The accident occurred in the early morning hours of August 17, 1949. The respondent was a truck driver, and had been so employed for seventeen years. In the late afternoon of August 16, 1949, on behalf of his employer, he had picked up a load of grapes at Delano in the San Joaquin valley. He was driving a tractor pulling two flatbed trailers. He drove the load of grapes to the Richmond Chase cannery in San Jose, arriving at about 2 a. m. He slept until about 3:30 a. m. and then his truck was unloaded by cannery employees. He then picked up the cables and ties that had secured the load, placed them on the trailer beds, and drove to the box shed where it was his duty to pick up empty boxes to be returned to his employer. It was then about 4 a. m. The weather was fairly clear with some fog. The cannery itself was not in operation, only the yard employees being in attendance.

The respondent parked his truck parallel to the empty boxes, and about twenty to thirty feet from them. The empty boxes were already piled on pallets in stacks. It was the duty of Silva and Castro, employees of the cannery, to load the empties onto the trailers. This was done by means of mechanized fork-lifters that picked up a pallet of nine boxes, drove to the trailer, and lifted the pallet onto the trailer. The beds of the trailers were 4 1/212 feet from the ground, and the 9 boxes and the pallet were 7 feet 3 inches in height, so that, when loaded, the top of the load was 11 feet 9 inches from the ground. Silva did all the loading on the left side of the trailers, and Castro all the loading on the right side. Silva picked up his boxes on his fork-lift, then drove forward around the back of the trailers and forward to where the boxes were to be loaded, raised the boxes on his mechanized equipment and loaded them onto the trailers. Castro, the right-side loader, picked up his pallet of boxes, and then backed up to the spot where he was to load his boxes on the right-hand side of the trailers. Each trailer could accommodate eight stacks of boxes, four stacks on each side. The front trailer was loaded first, from the front to the back. Castro and Silva had come to work at 6 p. m. the previous evening and were working a twelve-hour shift.

The evidence shows that the view of the operator of the fork-lifter was obstructed towards the front by the pallet of boxes. Castro testified that in the early morning hours he customarily backed up automatically without looking towards the rear. Silva corroborated this testimony, and further testified that on the morning of the accident neither he nor Castro looked backwards while backing their equipment. Castro conceded that he worked rapidly in order to load the trucks quickly so as to get them off the cannery premises.

Respondent testified that when he parked his truck for loading he removed the steel cables and ties which tie down the load, and laid them on the ground; that he then had no further duties to perform in the loading process; that he walked to a position on the right side of the trailers and stopped, facing across the trailers, when he was in the open space between the two trailers, ‘just above even’ with the outside edges of the trailers. The last thing he remembers is that the front trailer was fully loaded and one set of pallets had been loaded on the second trailer.

Respondent does not remember seeing or feeling anything hit him. Neither Castro nor Silva was aware that respondent was injured until they saw him lying on the ground. Both conceded, however, that no other people, machinery, or vehicles were in the area during the loading process, which consumed about twenty minutes. Castro testified that he was just about to load the last pallet of boxes onto the rear trailer when he glanced towards the front of the tractor-trailers unit and saw respondent lying upon the concrete floor. He stated that respondent was lying even with the cab of the tractor. Silva testified that respondent had his feet under the gas tank of the tractor, with his body at a right angle to the tractor.

After Castro observed respondent, he called to Silva, each loaded their last pallet, and then they both approached the injured respondent. Silva found respondent's wristwatch lying beside him. Respondent testified that he remembers nothing from the time he was standing between the two trailers until he woke up in the first-aid station.

The theory of appellants was that respondent must have climbed up on the tractor or the front trailer to tie down the boxes, and had fallen while doing so. Castro did not see respondent during the loading operations until he saw respondent on the ground. Silva remembers that once during the loading operations he saw respondent standing on the ground using a plank in an attempt to straighten the piles of loaded boxes. No one saw respondent trying to climb onto the loaded trailer or the tractor. Neither Castro nor Silva examined the fork-lifters or the boxes to see if they showed evidence of having hit the respondent.

Rouyet, the assistant night superintendent of the cannery, testified that he was not near the scene of the accident when it happened; that when informed of the accident he proceeded to the scene; that near the right side of the cab of the tractor he found an angle iron such as is used in tying on a load of boxes; that he observed a smudge on the gas tank on the right side of the tractor; and that he found blood where respondent had been lying. Rouyet did not observe the position of the other angle irons, or the cables or ropes used to tie down the load. Silva testified that the cables, angle irons and ropes were still on the ground when respondent was discovered.

Rouyet testified that, although in the past, he had observed some truck drivers hook in the angle irons from the ground, most truck drivers mounted the trailer to install them. He admitted, however, that this could not be done unassisted if the boxes were loaded flush with the edge of the trailer. He did not observe how the boxes were loaded on the front trailer here involved.

Respondent was positive that he had not climbed onto the equipment prior to blacking out, and testified that the tractor cannot be climbed upon from the ground. He also testified that angle irons and the cables can be and are installed from the ground, and that it would be extremely dangerous to try and climb onto a load of empties before it is tied down.

Respondent was severely injured. He had a facial burn with marked swelling on the left side of his face, a lacerated left eyelid, two parallel facial cuts, loose teeth, a fractured left elbow, and a fracture of the left jaw and cheek bone. He had a mild concussion and a sprained right knee. He had an operation on his jaw, had to have his teeth extracted, and could not work for ten months. He still was partially disabled at the time of trial, which was in March, 1952, some two and a half years after the accident. He urges that these injuries indicate that they were caused by being hit by a heavy object rather than from a mere fall.

The trial court denied motions for a nonsuit and directed verdict based on the ground of insufficiency of the evidence, and submitted the case to the jury. In its instructions, at the request of respondent, an instruction was given, unchallenged as to form, on the doctrine of res ipsa loquitur. The jury, as already indicated, brought in its verdict against all the defendants.

The major contention of appellants is that the evidence was insufficient, and certainly was insufficient to warrant a res ipsa instruction when nobody saw, heard, or felt the accident, and where inferences arising from circumstantial evidence are needed to establish that the fork-lifter caused the injury. The appellants claim that before a res ipsa instruction can be given, the evidence must indicate that the most reasonable probability is that the accident happened as a result of the negligence of the defendant. Such authorities as Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 446, 247 P.2d 344, and Prosser, Res Ipsa Loquitur in California, 37 Cal.L.Rev. 183, 191, are cited to support the rule that before the doctrine is applicable the probabilities must preponderate in favor of negligence being the proximate cause and in favor of that negligence being that of defendant. Based upon this premise it is urged that a basic essential is here lacking, in that there is no evidence at all of the cause of the injury. Res ipsa, it is urged, cannot be used to first establish that the instrumentality causing the injury was under the control of appellants, and then that such instrumentality was negligently operated.

Basically, it is appellants' position that the jury should not be permitted first to infer that the fork-lifter was the agency causing the injury, and then utilize the inference based on res ipsa predicated on such inference, in a case where the inference that the fork-lifter was the offending agency is no more likely than the inference that respondent was injured by falling off the truck. They urge that where there are equally reasonable alternative explanations, one that would make appellants responsible and one that would not, the doctrine is not applicable. Cases are cited which support this general proposition. La Porte v. Houston, 33 Cal.2d 167, 199 P.2d 665; Bennett v. Los Angeles Tumor Institute, 102 Cal.App.2d 293, 227 P.2d 473; Olson v. Whitthorne & Swan, 203 Cal. 206, 263 P. 518, 58 A.L.R. 129.

It is undoubtedly the law that another equally probable explanation consistent with defendants' non-liability bars application of the doctrine, but appellants erroneously assume that such question is one of law and not of fact. The mere possibility of another agency not under the control of defendant having caused the injury, will not par a proper instruction on the doctrine. Gordon v. Aztec Brewing Co., 33 Cal.2d 514, 203 P.2d 522; Doke v. Pacific Crane & Rigging, Inc., 80 Cal.App.2d 601, 182 P.2d 284. It was for the jury to determine whether the two possibilities were equally probable. In determining that issue the jury was entitled to take the testimony and circumstantial evidence most favorable to respondent, and to disregard the conflicting inferences. In Baker v. B. F. Goodrich Co., 115 Cal.App.2d 221, at page 229, 252 P.2d 24, at page 28, the applicable principle is stated as follows: ‘How and to what extent plaintiff must account for his own conduct is explained by the same learned authority in his oft-cited article ‘Res Ipsa Loquitur in California’, 37 Cal.L.Rev., 183, 201, as follows:

“(T)he plaintiff's mere possession of a chattel which injures him does not prevent a res ipsa loquitur case where it is made clear that he has done nothing abnormal and has used the thing only for the purpose for which it was intended.

“The plaintiff need only tell enough of what he did and how the accident happened to permit the conclusion that the fault was not his. Again he has the burden of proof by a mere preponderance of the evidence, and even though the question of his own contribution is left in doubt, res ipsa loquitur may still be applied under proper instructions to the jury'. (Emphasis added.)

‘Therefore, unless it can be said that the evidence here, as a matter of law, does not exclude ‘his (appellant's) conduct as a responsible cause’, the fact that the accident occurred while he was engaged in the act of mounting and inflating the tire would not deprive him of the benefit of res ipsa loquitur. Where the evidence is conflicting or subject to different inferences, it is for the jury, under proper instructions, to determine whether each of the conditions necessary to bring into play the rule of res ipsa loquitur are present. Roberts v. Bank of America, 97 Cal.App.2d 133, 137, 217 P.2d 129.'

What we are here dealing with is simply a case of circumstantial evidence. The only ways in which respondent could have been hurt were by the fork-lifter or by falling off the trailer. The evidence excludes other instrumentalities as the cause. No one saw respondent on the trailer. The evidence shows that he could not climb onto the tractor, that it was difficult if not impossible to climb onto the trailer, and that the angle irons and cables could be installed from the ground. Respondent's last recollection is of standing on the ground, and he has no recollection of removing the angle irons or cables from the ground. No one saw him doing so. The nature and extent of the injuries indicate the probability that he had been hit by the fork-lifter. Castro operated the fork-lifter backwards and forwards rapidly without looking or being able to see where he was going. The only unexplained fact is how respondent got to the position opposite the cab of the tractor where he was found. He last remembers standing between the two trailers. He could have been hit there and staggered to or could have been knocked to the spot where he was found. Under these facts it was for the jury to say whether it was most likely that he was hit by the fork-lifter or fell from the equipment.

Of course, it is the law that, the mere fact an accident happened on appellants' premises does not give rise to or support an inference that appellants were negligent, unless it be shown, directly or indirectly by the evidence, that appellants were in control of the agency causing the injury. John v. B. B. McGinnis Co., Inc., 37 Cal.App.2d 176, 99 P.2d 323. But such causation can be shown by direct or circumstantial evidence.

Certainly, the mere fact that the evidence and the inferences that arise therefrom are in conflict does not prevent the doctrine of res ipsa being applicable. Whatever doubt may have existed on this subject in the past, it is now well settled that a res ipsa instruction is permissible not only when the facts of the accident are in dispute, but even where it is disputed that any accident at all occurred. Milias v. Wheeler Hospital, 109 Cal.App.2d 759, 241 P.2d 684; Roberts v. Bank of America, 97 Cal.App.2d 133, 217 P.2d 129; Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 247 P.2d 344; Black v. Partridge, 115 Cal.App.2d 639, 252 P.2d 760, and the recent case of Hardin v. San Jose City Lines, Inc., 41 Cal.2d 432, 260 P.2d 63. Certainly, if a properly conditioned res ipsa instruction can be given when it is disputed whether the accident happened at all, it can be given when the accident is proved but the causation is in doubt.

The parties discuss at some length the question as to whether in this state the inference involved in res ipsa can itself be predicated on an inference. It is settled law that an inference may be predicated upon an inference in this state. Vaccarezza v. Sanguinetti, 71 Cal.App.2d 687, 163 P.2d 470. Of course, the first inference must be reasonably probable and not be predicated upon speculation. Reese v. Smith, 9 Cal.2d 324, 70 P.2d 933. But, under the authorities already cited, in doubtful cases, such as the instant one, it is for the jury to determine whether the first inference is speculative or is reasonably probable. Certainly, the mere fact that respondent was knocked unconscious and is unable to recollect how the accident occurred, does not bar the application of the res ipsa doctrine. In Raber v. Tumin, 36 Cal.2d 654, 226 P.2d 574, the majority of the court applied the doctrine to an accident where a ladder fell upon the plaintiff, and where the plaintiff could not recollect how the accident occurred. It was possible that the plaintiff could have fallen negligently against the ladder and knocked it over, or the ladder could have fallen on plaintiff. The court held that it was up to the jury to reconcile these conflicting inferences and that, having done so, it could then apply res ipsa. Of course, in the Raber case, it was known that the instrumentality causing the injury was the ladder, while here such instrumentality is itself in doubt, but the same doubts as to alternative possibilities that caused the accident existed in the Raber case as exist in the instant case. In the Raber case the alternatives were, did plaintiff fall against the ladder or did the ladder fall on plaintiff? In this case they are, was respondent hit by the fork-lifter or did he fall? In both cases it was for the jury to determine which alternative was most probable.

It is interesting to note that in the Raber case the proprietor and his mere employee were required, under the res ipsa doctrine, to explain the accident because the proprietor had control of the ladder, and the employee was simply working about the premises, even though each could have been independently liable.

On this phase of the case it is our conclusion that the circumstantial evidence supports the inference that the accident was caused by the fork-lifter operated by Castro, that such inference is reasonable and not speculative, and that the inference involved in res ipsa could be applied to the first inference which is based on circumstantial evidence.

A different problem exists as to appellants Rouyet and Silva. Rouyet was the night superintendent of the cannery at the time of the accident. But there is no evidence at all of the scope of his duties, as to any notice to him of the negligent manner in which the fork-lifters were backed without the operator looking to the rear, as to any instructions relating to operation that he did or did not give, or as to what he was doing or where he was at the time of the accident. Admittedly, he was not present at any time during the loading operations. There is no evidence, or no reasonable inference from the evidence, that supports the judgment against him.

The same can be said of Silva. The uncontradicted evidence places him at all times during the loading operation on the side of the equipment opposite to where respondent was standing and was hurt. There is no evidence, or no inference from the evidence, that places Silva in the area of the accident.

Respondent seeks to affirm the award against Silva under the rule of those cases which hold there can be multiple responsibility under the doctrine of res ipsa where any one or all of the defendants could have been reasonably responsible for the accident. Raber v. Tumin, 36 Cal.2d 654, 226 P.2d 574; Cavero v. Franklin, etc., Benevolent Soc., 36 Cal.2d 301, 223 P.2d 471; Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687, 162 A.L.R. 1258. These cases are not here applicable. In all of them, under the evidence, any one or all of the defendants could have been responsible. In the instant case the uncontradicted evidence shows that the area limitation of Silva's work was such that he could not have been responsible for the accident.

Respondent also seeks to support the awards against both Rouyet and Silva on a procedural argument. The record shows that but two forms of verdict were furnished the jury, one for and one against all defendants. No objection was made by any of the appellants to submitting the case to the jury in this fashion, nor did Silva or Rouyet ask for separate verdicts in reference to their liability. Respondent urges that since these two appellants made no objection in the trial court, they have waived their right to object on appeal. While failure to object to the form of the verdict constitutes a waiver of certain defects, Hicks v. Coleman, 25 Cal. 122, 146; Joerger v. Pacific Gas & Electric Co., 207 Cal. 8, 21, 276 P. 1017, it certainly cannot constitute a waiver of a sound claim that the evidence is insufficient to support the verdict as to any one of the defendants. See, generally, Pisani v. Martini, 132 Cal.App. 269, 22 P.2d 804; discussion 3 Cal.Jur.2d p. 649, § 164.

Although the judgment must be reversed as to Rouyet and Silva, counsel for these appellants have waived their right to any costs.

The judgment as to Rouyet and Silva is reversed, without costs; as to the Richmond Chase Company and Castro, the judgment is affirmed, with costs to respondent.

PETERS, Presiding Justice.

BRAY and FRED B. WOOD, JJ., concur.

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