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District Court of Appeal, Second District, Division 2, California.


Civ. 9043.

Decided: March 19, 1935

George H. Moore, of Los Angeles, for appellant. J. Marion Wright, of Los Angeles, for respondent.

Defendant appeals from order denying motion for judgment notwithstanding the verdict. Such motion was made after motions for nonsuit and for directed verdict had been denied and the jury had returned its verdict in plaintiff's favor.

Plaintiff, a fisherman, met a sailor friend who invited him to come to the boat Norfolk Maru, on which the sailor was employed, to see some goldfish which were for sale. In company with two other friends plaintiff went to the wharf where the ship was docked. There was a warehouse which occupied about three-quarters of the width of the wharf for nearly its entire length, leaving a strip at one side one-quarter of the width of the wharf. The warehouse bore the name “City of Los Angeles” and the designation “Berth 230 D-E”; also the names “Luckenbach Lines” and “General Steamship Corporation.” Defendant company had been hired as stevedore for the occasion by agents of the ship, and at the time was engaged in loading the Norfolk Maru with freight from a balcony of the warehouse which extended over the strip of open dock about five feet. While plaintiff was on his way to the boat a sling returning from the ship to the loading dock struck one of the bales of paper piled on the warehouse balcony which extended above where he was walking, causing the bale to fall upon and injure him.

It is well settled that in construing the evidence to determine whether a motion for judgment notwithstanding the verdict should have been granted, all conflicts must be disregarded and the evidence must be viewed in the light most favorable to the party to whom such judgment was awarded. Barthelmess v. Cavalier (Cal. App.) 38 P.(2d) 484; In re Flood's Estate, 217 Cal. 763, 21 P.(2d) 579.

Plaintiff had parked his car near the warehouse and had walked out along the dock toward the boat, passing on the way a dock watchman employed by the General Steamship Company. Contrary to assertions of defense witnesses, plaintiff and his companions testified that there was no picket fence extending across the dock at a point opposite the forward end of the Norfolk Maru, and no other obstruction appears to have been interposed to free ingress and egress. No warning or “keep out” signs were posted, except: “No smoking. Positively No Parking of Automobiles on Municipal Piers.” No watchman was employed by defendant, and no one told plaintiff or his companions to keep out, nor did any one question them. Two sets of railroad tracks ran the length of the open portion of the wharf, and plaintiff's witnesses testified that there was no freight on that portion where the loading was being done. A gangplank extended from about the center of the boat to the wharf. Just before the accident plaintiff had observed one load passing by means of a sling from the balcony to the ship, and waited for it to get by. He then started for the gangplank, the sling returned to the balcony, hit a bale of paper, and plaintiff was struck by the bale when it fell off the balcony. Defendant's employees declared they did not know plaintiff or his companions or any one else was present. No shout or other notice was given of impending danger.

Evidence was introduced that defendant had nothing to do with people coming or going on the dock when a boat was loading. It appears also that freight cars were shunted along tracks on the open portion of the dock traversed by plaintiff during unloading operations which were conducted from the balcony, and that General Steamship Company had general charge of and controlled the dock except as to the carrying on of work such as in this case.

There is evidence to support the implied finding of the jury that plaintiff was on the dock and at the place where the accident occurred as a licensee, and that the accident and injury to him resulted from an overt negligent act of defendant's employee. Under such implied finding the verdict is sufficiently supported and the court properly denied the motion for judgment notwithstanding it. Herold v. Mathews Paint House, 39 Cal. App. 489, 179 P. 414. Where the licensor was or had good reason to be aware of the presence of the licensee in the place of danger * * * [he] is charged with the duty of exercising reasonable care to avoid injury to the licensee by any active or overt act of negligence.” Lindholm v. Northwestern Pacific R. R. Co., 79 Cal. App. 34, 248 P. 1033, 1035. See, also, Brigman v. Fiske-Carter Const. Co., 192 N. C. 791, 136 S. E. 125, 49 A. L. R. 773, and note at page 778. In Sage's Administrator v. Creech Coal Co., 194 Ky. 415, 240 S. W. 42, 44, the court said: “The licensee, like the trespasser, must take the premises as he finds them. About the only essential difference is that the owner need not anticipate the presence of the trespasser, but often must anticipate the presence of the licensee. This duty of anticipating the presence of the licensee does not, however, impose any affirmative duty upon the owner of providing him a safe place, and he may revoke the license at any time; but it does place upon him the negative duty, so long as he permits the license to continue, of not doing any positive act that suddenly increases the hazard to the licensee of exercising his license, without reasonable notice to him of the increased hazard.” In Sughrue v. Booth, 231 Mass. 538, 121 N. E. 432, under a set of facts comparable to the instant case, it was held that the defendant owed to the injured party “the duty of exercising due care in unloading the cargo for the same reason that one traveller on a public way owes another traveller on the way the duty of exercising due care not to injure him.”

Here defendant was not the owner, nor was it in exclusive occupancy of the premises. It appears that it had the right to use so much of them as was required for its work of stevedoring, but that it had no right to conduct its work in a manner which might imperil others without taking appropriate precautions by way of excluding or warning persons who might thus be in danger. The jury may well have concluded that, since there was a ship at dock with a crew on board or on shore leave, many of whom might be presumed to have friends on shore, and where access might be had along an open and unobstructed dock owned by the city and used by two or more steamship lines, defendant in the exercise of ordinary prudence and in the light of common experience must have anticipated the presence on the dock of persons other than its own employees, and should have used ordinary care to avoid injuring such persons even though they be mere licensees, and that under the facts of the case such care was not used and therefore defendant was liable for its negligent overt act and the injury to plaintiff thereby caused.

Order affirmed.

SCOTT, Justice pro tem.

We concur: STEPHENS, P. J.; CRAIL, J.

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