ATCHISON TOPEKA SANTA FE RAILWAY CO v. <<

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

Nick GLUSAC, Plaintiff and Appellant, v. ATCHISON, TOPEKA & SANTA FE RAILWAY CO., a Corporation, and Pacific Electric Railway Company, a Corporation, Defendants and Respondents.

Civ. 29249.

Decided: July 14, 1966

Magana, Olney, Levy, Cathcart & Gelfand, and Ellis J. Horvitz, Los Angeles, for appellant. John J. Balluff, Richard K. Knowlton, Merrill Albert, Los Angeles, for respondents.

Appellant Nick Glusac, plaintiff below, was injured while unloading potash from a railroad car onto a ship.   The freight car was owned by respondent Atchison, Topeka & Santa Fe Railway and was delivered and inspected by respondent Pacific Electric Railway Company.  (Respondents are collectively called the “Railroad”).

The case was tried to a jury.   At the conclusion of appellant's case in chief, respondents' motion for nonsuit was granted and judgment was entered thereon.   This appeal is from the judgment of dismissal.

Appellant was a longshoreman employed by a stevedoring company to unload the railroad cars from a pier onto a ship.   The freight cars were separated from the train and pulled down the pier by a tractor to and over a pit.   The longshoremen would then open the several sliding hopper doors beneath the car, allowing the potash to pour out onto a conveyor belt located in the pit.   The belt carried the potash to the ship.

The hopper doors under each freight car were opened by a ratchet mechanism which, when operated, released and slid the doors on shafts running in a lengthwise direction under the cars.   The longshoremen, under ordinary conditions, unloaded approximately four cars per hour.   On an average of one out of 30 cars, the men would encounter a stuck door.   Doors became stuck either because the potash had caked hard, or because of poor maintenance of the moving door portion of the car.

Before the hopper cars were taken down the pier to the unloading pit, they were inspected in the railroad yard in the harbor area.   The inspection focused primarily on safety appliances, wheels, ladders, and other items of interest to railroad workers.   Very little attention was paid to the hopper doors.   Normal and routine work procedure required the longshoremen to refer and report any defect or malfunction in the railroad cars which impeded unloading to the railroad for correction.   In such event work procedure required the longshoremen to remove the defective car from the pit area onto another track and call for a railroad crew to repair the car causing difficulty.   In practice, however, the longshoremen were expected to maintain the flow of unloaded cars;  they found it more expedient to attempt to repair the cars themselves while they were over the pits.1

Thus, as a practical matter, when a longshoreman encountered a stuck door, he called other workers to help him open it.   The men thus assembled would first apply manual pressure to a bar placed in the ratchet for leverage.   When that failed, they would strike the area of the hopper door with a sledge hammer in order to break it loose.   As a last resort, a long bar would be placed in the ratchet and a cable would be attached to the bar at one end and to a jitney or tractor at the other.   The jitney would then mechanically turn the ratchet by pulling the cable.

There is some indication in the evidence that the railroad knew of the methods used by the longshoremen to open the hopper doors.   Roy Hegglin, car inspector for respondent Pacific Electric Railway, testified in the following manner:

“Q * * * Well, Mr. Hegglin, you personally were aware of the fact that this is a common situation, that these doors stick, isn't that right, on potash cars;  right?

“A. Yeah, on occasions they stick;  yes.

“Q And the use of your equipment has occurred in only about eight or ten times, or the requirement for the use of that equipment, in ten years in your experience, is that right?

“A Oh, as near as I can remember.

“ * * *

“Q And in the meantime you have watched the men opening these doors?

“A I have seen them open them, yeah.

“Q And the method that I have described is the one that is usually utilized, isn't that right?

“A Yeah, they—

“ * * *

“Q Have you seen them take a bar and put it in that device and try to pull it by hand?

“A Yeah, I have seen them do that.

“Q Have you seen them do that with the use of a jitney and a cable?

“ * * *

“A I have never seen them pull on a door [bar] with a bar—I mean with a jitney.

“Q And you have never known of that process?

“A I have heard of it, but I have never seen it.”

The evidence further shows that the longshoremen were never given specific instructions by their the railroad or the stevedoring company concerning what methods, if any, were to be utilized in opening malfunctioning freight hopper car doors.   The tools used to open the doors were supplied by the stevedoring company.

On December 8, 1960, the day of the accident here involved, one of the longshoremen had encountered a stuck door.   Appellant and several other workers joined in attempting to open it.   After manual methods had failed, they inserted a steel bar in the ratchet for use with a cable and jitney.   A steel cable was spliced through an eye in the bar.   The cable was attached to a jitney which began pulling on the bar.   The door was so firmly stuck, however, that the bar broke without turning the ratchet mechanism.   The longshoremen then obtained a larger bar for the same purpose.   This particular bar had no eye or notch in which a cable could be attached.   The men employed the usual procedure in such situations of slipping the end of a spiced cable over the bar, placing the bar in the ratchet at an angle, and holding the cable until the jitney had pulled the cable taut.   Appellant held the cable as the jitney began pulling.   The cable slipped off the end of the bar, causing the bar to spring backwards out of the ratchet.   Appellant was hit in the face and hand and sustained the injuries complained of.

At the conclusion of appellant's case, the trial court granted a nonsuit on the ground that appellant had failed to prove the element of proximate cause.   The proximate cause of the injury, said the court, was “the last means of force that was used by the stevedoring company”, and it was “not foreseeable to the railroad that that last means of force would have been employed * * *.”

 In reviewing the propriety of a nonsuit, our function is to determine whether there is any substantial evidence which would support a judgment for the plaintiff disregarding all conflicts and indulging in all reasonable inferences in the plaintiff's favor.  (Carey v. City of Oakland, 44 Cal.App.2d 503, 509, 112 P.2d 714;  Gordon H. Ball, Inc. v. Parreira, 214 Cal.App.2d 697, 701–702, 29 Cal.Rptr. 679;  McCall v. Otis Elevator Company, 219 Cal.App.2d 22, 24–25, 33 Cal.Rptr. 44.)

Appellant contends that there is evidence from which it may be found that the railroad had a duty to provide the longshoremen with freight cars which were safe to unload;  that the railroad breached this duty;  and that this negligent breach caused foreseeable harm to appellant.

 We think the nonsuit was correct, but we do not agree that the accident was not foreseeable.   The evidence shows knowledge by Railroad of the methods used by the longshoremen to loosen stuck doors.   With this positive knowledge it is our opinion that the accident here was foreseeable.   We rest our affirmance on the ground that there is no duty to tell another that which is obviously known.

“[O]ne is not required to anticipate against dangers which it is not his duty to avoid.”   (Tucker v. Lombardo, 47 Cal.2d 457, 464–465, 303 P.2d 1041, 1046, emphasis added.)

 It is settled that a judgment of nonsuit will be upheld on appeal for reasons other than those specified by the trial court only “if it is clear that the defect is one which could not have been remedied had it been called to the attention of plaintiff by the motion.”  (Lawless v. Calaway, 24 Cal.2d 81, 94, 147 P.2d 604, 610;  Markwell v. Sykes, 173 Cal.App.2d 642, 651, 343 P.2d 769.)   The record shows that the defects upon which we rely meet that test.

 The duty of Railroad toward appellant in the case at bench is well stated in Garner v. Pacific Electric Railway Company, 202 Cal.App.2d 720, at pp. 731–732, 21 Cal.Rptr. 352, 360, 99 A.L.R.2d 165:

“A railroad has the duty to use ordinary care to deliver cars which are reasonably safe for loading and unloading by the employees of the concerns to whom the cars are delivered for use.   It follows that there is a duty to make reasonable inspections of the cars to the end that defects therein may be ascertained and to warn of or to repair the defects thus found.”   (Emphasis added.)

 The court in Garner points out that the primary duty of the railroad is one of inspection, “and that duty is not in anywise delimited by the kind of defect which may or may not exist.”  (Id. at p. 731, 21 Cal.Rptr. at p. 359.)   The duty to inspect is, of course, meaningless, unless the results of that inspection, where relevant, are communicated to those to whom the duty is owed.   Thus the court stated:  “[t]here is what might be termed a secondary duty, namely either to warn of or to remedy certain defects which may be uncovered by the reasonable inspection.”  (Id. at p. 731, 21 Cal.Rptr. at p. 359.)

 The duty to warn or repair is conditioned on the type of defect which was or ought to have been uncovered by the inspection.   The Garner decision continues the foregoing discussion, stating:  “If the defect found be an open, visible, obvious one—a patent defect—the duty to warn or to repair does not come into play because the invitee can be expected to ascertain for himself by the use of his own common sense that there is a defect.”

 In the case at bench, appellant was fully aware of the defective condition of the hopper door.   Indeed, his injury was sustained while he was attempting to remedy the defect.   This knowledge obviated any duty of Railroad to warn him that the door did not function properly.   There is no duty to warn another concerning that which he already knows.

In Knight v. Contracting Engineers Company, 194 Cal.App.2d 435, at page 443, 15 Cal.Rptr. 194, at page 199, the court says:

“Plaintiff's own testimony as to his knowledge [of the defect] renders defendant's failure to place marks upon the planks so as to indicate they were not to be used as scaffolding as immaterial.   There is no duty to tell another that which he already knows.  Markwell v. Swift & Co., 126 Cal.App.2d 245, 251, 272 P.2d 47;  Neuber v. Royal Realty Co., 86 Cal.App.2d 596, 613, 195 P.2d 501;  Starck v. Pacific Elec. Ry. Co., 172 Cal. 277, 282, 156 P. 51, L.R.A. 1916E, 58.”

Appellant argues that Railroad had the broad duty to provide generally safe working conditions for the employees of the stevedoring company, and focuses on some indeterminate duty of the Railroad to repair the defective doors prior to unloading.   It is to be noted, however, that the duty described in Garner is in the disjunctive, not conjunctive.   The railroad must either warn or repair.

 We emphasize that appellant was employed and supervised not by the Railroad company but by the stevedoring company.   The methods of unloading (within reasonable limits) and the tools used therein were the responsibility of appellant's employer.   The Railroad, of course, did provide its services for the repair of hopper doors in the event that the car could not otherwise be unloaded.   This, however, was not an assumption of a legal duty, but the solution to a practical economic problem;  presumably neither the Railroad nor the owners of the cargo would permit the potash to stand in the hopper car indefinitely.

The judgment is affirmed.

DISSENT

I

Since plaintiff produced some evidence to support the charge of negligent inspection and maintenance of the unloading mechanism of the railroad car, I think the entry of the nonsuit was improper and the railroads should have been put to their defense.

I start with the proposition that the Santa Fe owed a duty to users of its hopper car to periodically inspect all working parts of the car for defects and systematically maintain the car in good condition for its intended use.   Santa Fe, conceding the existence of some kind of duty, nevertheless argues it could satisfy that duty by either repairing the car or giving warning of its condition;  that when the car's defective condition became obvious at the time the unloading mechanism failed to work, this obviousness amounted to constructive notice of the defect equivalent to warning;  that such notice satisfied the duty of due care to plaintiff, because there is no obligation to tell another what he already knows or to warn him against a defect which is obvious.

Santa Fe's argument requires some further analysis of its duty as owner and supplier of the railroad car to users of the car.   Duty to do what?   When we speak of a duty owned by Santa Fe to Glusac we are referring in shorthand manner to the requirement that a supplier of chattels see that its chattel is reasonably fit to perform the work it is sent out to do.   We do not insist that the supplier of a chattel insure the safety of those using it, but we do require the supplier to exercise due care to put its chattel in reasonably safety condition for its intended use.   With a chattel for hire we transmute an abstract duty to make reasonably safe into a concrete obligation to undertake a program of periodic inspection and systematic maintenance in order to keep the chattel in reasonable working order.   The beneficiaries of this duty include all whom the supplier of the chattel could reasonably expect to use it.   In the case of a continuously circulating chattel which passes through many hands, it appears obvious that only a program of periodic inspection and systematic maintenance, designed to forestall normal wear and tear and anticipate recurring breakdowns, could satisfy a duty to keep the chattel reasonably safe for its users.   When a railroad such as the Santa Fe circulates freight cars throughout the country, its duty to exercise due care to keep its cars reasonably safe can only be satisfied by an inspection and maintenance program adequate for the job.

Which brings us to warning.   Is the giving of a warning an alternative way to satisfy this duty?   The rules with respect to the liability of suppliers of chattels have evolved in large part from those dealing with the liability of landowners for conditions on their land.   It has been said that landowners are under an alternative duty to keep their premises in reasonably safe condition, or warn visitors of defective and dangerous conditions.   (Restatement, Torts, 2d ed., § 342;  2 Witkin, Summary of California Law, pp. 1454–1455.)   Some aspects and conditions of land cannot be made reasonably safe for general use.   Others cannot be made reasonably safe without an expense entirely out of proportion to the danger involved.   Since it is impractical to correct all dangerous and defective conditions to which visitors may be exposed on the land, the landowner's duty to make his property reasonably safe for visitors may often be satisfied by adequate warning of the danger involved (Restatement, Torts, 2d ed., § 342, comment j.).

However, the considerations which justify the use of warning as a means of limiting the extent of the duty of a landowner do not necessarily apply to the supplier of a chattel.   The rule which permits the owner of a quarry or a pond or a dry wash or an icy walk to warn of its dangerous condition and thereby satisfy his duty of due care has no special relevancy to the responsibility of the owner of a chattel who permits it to circulate in a defective state.   It may be extremely difficult for the owner of a quarry or a large pond to fill it in, fence it off, or drain it, but it is usually relatively simple for the owner of a chattel to take sufficient precautions to keep his chattel in reasonably good repair.   In the latter instance we are dealing with responsibility for a specific object of finite extension designed to given plans and specifications for a particular use.   The railroad car is brought into being for the sole purpose of circulating among users, and when the car is no longer in good condition its owner can retire it from circulation or correct its defects.   For these reasons I do not think that a rule originating in the law of real property—that the landowner has the duty either to make safe or to warn—necessarily defines the duty of the supplier of a railroad car.   The latter cannot satisfy his duty of due care to the public by covering his car with signs saying “Use this car at your own risk” and letting its physical condition deteriorate, nor can be keep an aging car in circulation without periodic inspection and systematic maintenance in reliance on its visibly decrepit and antiquated state.   The supplier of a chattel in circulation must maintain an adequate inspection and maintenance program in order to satisfy his duty of due care, and he cannot escape this obligation by relying on the poor appearance of his chattel to put users on warning that its use may be dangerous.  (Harper & James, Law of Torts, pp. 1539, 1542–1543.)

A further weakness to a rule which equates warning with due care is that the rule did not originate in any conscious judicial policy but arose somewhat accidentally from the forms of action in common-law pleading.   The effectiveness of warning as an immunization from liability for dangerous conditions of chattels stems in large part from the historical origin of trot liability of suppliers in the action of deceit.   The original liability of a supplier of chattels was founded on the theory that in furnishing a defective chattel the supplier practiced deceit in concealing its defective condition.   If, however, the defect were made known or its existence became apparent, then the suppliers' conduct was no longer deceitful, and the main element of the cause of action against him vanished.   But modern doctrine places a duty on the supplier to exercise due car to make his chattel reasonably safe for its intended use, and the element in the common-law action of deceit that made warning of such critical importance in the past is no longer dominant.   Under current trends the obviousness of a condition is simply one factor to consider in determining the issue of negligence.   With respect to the rule which rejects a duty of care where the peril is open, Professors Harper and James have said, “It is submitted that such a rule is a vestigial carryover from pre-MacPherson days when deceit was needed for recovery.   It is not to be found in the Restatement which adopts the negligence approach.   There is certainly no general rule that a danger must be concealed to be a ground of negligence.   A defect in the highway, a pit next to the sidewalk, or a defective stairway in the common approach to an apartment house does not cease to be unreasonably dangerous simply because it is obvious or well known.   And, as we have seen, where the supplier's duty is thought of as one to take care, his disclosure of a dangerous defect does not always satisfy that duty.”  (2 Harper & James, Law of Torts, p. 1544.)

Under present tort law the liability of a supplier who neglects to furnish a reasonably safe chattel is not necessarily limited to hidden defects but may extend to obvious ones as well.   The supplier of a railroad car in decrepit condition cannot escape his responsibility for consequent injuries because the decrepit nature of the care is readily visible to its users.   In brief, obviously poor maintenance does not immunize a carrier from liability for a failure to exercise due care.   While the obviousness of the dilapidated condition may have some bearing on the issue of contributory negligence, it does not dilute the basic duty of a supplier of chattels to exercise reasonable care to see that his chattel is in good working order, a duty normally discharged by adequate inspection and maintenance.

With specific reference to freight cars the general rule has been summarized:

“It is well established that a railroad which, having general or special ownership of a freight car, offers and furnishes it for use under a contract for the carriage of goods, has a duty to exercise due or ordinary care to determine that the car is in a condition which is reasonably safe for loading or unloading by anyone called to engage therein, and is liable for the death of or injury to such person while so engaged, resulting from a negligent violation of its duty.”  (Annotation, 99 A.L.R.2d 179–180.)

Under this rule suppliers of railroad cars have been held liable for injuries caused by such obvious defects as an endgate held in place by wire (Powell v. Pacific Naval etc., Contractors, 93 Cal.App.2d 629, 209 P.2d 631;  Oklahoma City–Ada–Atoka Ry. v. Crabtee, 1952, 207 Okl. 327, 249 P.2d 445);  a stuck freight-car door which fell on its user (Zancaner v. Louisville & Nashville R.R., 220 Cal.App.2d 836, 34 Cal.Rptr. 143;  a broken stop on the lifitng lever of a hatch cover (Mertes v. Atchison, T. & S.F.Ry., 206 Cal.App.2d 64, 23 Cal.Rptr. 320);  a hole 3 feet by 2 1/212 feet in the floor of a boxcar (Chicago, Rock Island & Pacific v. Sampson, 1940, 200 Ark. 906, 142 S.W.2d 221);  a stuck lid on a tank car (Rylander v. Chicago Short Line R.R., 1958, 19 Ill.App.2d 29, 153 N.E.2d 225, affm'd 1959, 17 Ill.2d 618, 161 N.E.2d 812);  a stuck boxcar door which fell as it was being pried opn or shut (Lewis v. Southern Pacific Co., 98 Cal.App.2d 358, 220 P.2d 431;  Cox v. Chicago, Rock Island & pacific, 1957, 250 Minn. 187, 84 N.W.2d 263;  Brehmer v. Chicago and N.W.R., 1955, 269 Wis. 383, 69 N.W.2d 565);  a stuck boxcar door which fell as it was being pulled by a chain door-opener (Wabash Railroad Co. v. Hartog, 1958, 8th Cir., 257 F.2d 401);  a stuck boxcar door which fell as it was being pulled open by cable and tractor (Jackson v. Chicago, M.St.P. & P.Ry., 1947, 238 Iowa 1253, 30 N.W.2d 97);  a missing ratchet device on the unloading mechanism of a hopper car (Liberty Mutual Ins. Co. v. Great Northern Ry., 1928, 174 Minn. 466, 219 N.W. 755).   A stuck hopper door presents a comparable obvious defect.   I conclude that the carrier's duty of care is not minimized or vitiated because the defects resulting from its neglect are apparent.

II

There was some evidence that Santa Fe did not perform any periodic inspection and maintenance on the hopper cars of its railroad.   PLaintiff testified that the unloading mechanisms of the potash cars were not properly maintained and not cleaned and greased (testimony in my view improperly stricken by the court).   A witness for plaintiff testified that the unloading mechanisms of the potash cars were not oiled or properly taken care of.   Whether Santa Fe had neglected its duty to make its car reasonably safe for plaintiff's use thus became an issue of fact.

The nonsuit appears to have resulted because plaintiff principally claimed that the railroad should have tested the unloading mechanisms of its hopper cars immediately prior to delivery of the cars to the dock.   But during plaintiff's own case, the defendants were able to demonstrate that a test of the working condition of hopper doors of a loaded car was not feasible prior to the car's delivery to a consignee.   Visual inspection of the unloading mechanism was not apt to disclose its working condition.   Indeed in this very case plaintiff and his witness testified that they had seen nothing wrong with the appearance of the hopper door in question.   The only effective test of the unloading mechanism would have been to open the hopper doors, a test not practicable on a loaded car for three reasons:  the seal on the car would have been broken prior to delivery of the car to the consignee;  some of the cargo would have spilled on the ground;  and the hopper doors, once opened, could not have been readily closed.   Defendants made a convincing case against a test of the working condition of the unloading mechanism prior to delivery.

However, plaintiff's claim that defendants were under a duty to test the unloading mechanism prior to delivery was only part of his case.   He also presented evidence which suggested that the railroad never inspected its unloading mechanism at all and had no system of periodic maintenance designed to keep hopper doors in good working order.   If this were true, then plaintiff would have established a prima facie breach of the duty of due care owed him by the railroad.  “Although there are old cases to the contrary, the modern view is definitely that the obligation of a railway company to make reasonable inspection and repair of its cars before supplying them extends to the employees of a shipper, of a consignee, and of a connecting carrier.”  (Prosser on Torts, 3d ed., p. 686;  Harper & James on Torts, pp. 1542–1544, 1557–1559;  Restatement, Torts 2d, § 392.)   The railroad should have been required to prove the steps it took to service the unloading mechanisms on its hopper cars.   It may be the railroad would produce convincing proof that the unloading mechanisms on a hopper car were competently tested before delivery of a car to shipper of potash for loading.   Conversely, the evidence might disclose that the railroad paid no attention to the condition of such mechanisms until someone made a complaint.   Whatever the facts, it would be a jury question whether the railroad had exercised the amount of care required by the circumstances.

III

Having found the existence of a duty owned by Santa Fe and evidence tending to prove a breach of that duty, I next consider whether there was sufficient causal relationship between Santa Fe's breach of duty and the injuries incurred by plaintiff to create a liability.   Expressed in legal terms, was the defendants' breach of duty a proximate cause of plaintiff's injuries?

Undoubtedly, there was a causal relationship between Santa Fe's breach of duty and the injuries suffered by plaintiff, for if the unloading mechanism of the hopper door had been in good working order plaintiff would not have been injured.   Yet causation alone is an insufficient basis on which to predicate liability, for only a cause which the law considers sufficiently related to a following effect amounts to legal causation, or proximate cause, and carries legal responsibility with it.

Determination of cause and effect is as difficult a problem in law as in other fields of human endeavor.   Consider, for example, the old English nursery rhyme:

For want of a nail the shoe was lost,

For want of a shoe the horse was lost,

For want of a horse the rider was lost,

For want of a rider the message was lost,

For want of a message the battle was lost,

For want of a battle the kingdom was lost,

And all for the want of a horseshoe nail.

Does the ex-king have a cause of action against the blacksmith?   Against the stable-boy?   Against the messenger?   Against the commanding general?   In particular cases, we can only arrive at solutions by pragmatically deciding which events are related to each other and which ones are not.   For the loss of a kingdom the ex-king would probably have a complaint against his commanding general—but not against the messenger, the stableboy, and the blacksmith.

When we turn to the law books for assistance we find they only provide us with further questions—and questions based on circular reasoning at that.   Was the defendant under a duty to protect the plaintiff against the event which did in fact occur?  (Prosser, Torts, 3d ed., pp. 282–283.)   Does it appear to the finder of fact highly extraordinary that the actor's conduct should have been a substantial factor in bringing about harm to another?  (Restatement, Torts, 2d, § 435.)   Such questions are of little help in determining at what point in causation we should conclude that our target is out of range and order a cease fire.   Which brings us to foreseeability, the test generally used under modern legal theory to establish the boundaries and outer range of legal causation.   Simply stated, this rule holds the defendant liable for all consequences arising out of his breach of duty which are reasonably foreseeable.   The extent of his liability is limited to foreseeable consequences.  (Prosser, Torts, 3d ed., pp. 288–289.)   The rule leaves much to be desired, but until a better one is devised it will have to do.

In the case at bench plaintiff argues the jury might have found leagl causation between defendants' breach of duty and plaintiff's injuries, because it was reasonably foreseeable that the furnishing of a car with an unloading mechanism which did not work would lead to attempts by the consignee and its employees to force open the hopper doors with makeshift means and makeshift tools whose use would carry a substantial risk of personal injury.   Santa Fe argues it could not reasonably foresee that Glusac, faced with an obvious malfunction, would attempt to force open the hopper door by a highly dangerous method involving the use of improper equipment.   In attacking the hopper door in a reckless manner, argues the railroad, Glusac proceeded at his own risk.   His attempts to force open the hopper door were properly classified as a superseding cause of his injury and terminated any legal causation derived from Santa Fe's original breach of duty.

Foreseeability inevitably turns on the facts of each case, and for that reason in considered peculiarly appropriate for resolution by a jury, whose broad experience enables it to cut through tenuous and abstract legal reasoning and arrive at a sensible verdict which solves the issue of legal causation.  (W Witkin, Summary of California Law, p. 1483.)   In this case the arguments on both sides have force.   The jury might have concluded that the use of negligent methods by the longshoremen in attempting to unfreeze the stuck door was a foreseeable consequence of the furnishing of a car with inoperative unloading mechanism and thus a dependent force which did not destroy the force of the original negligence.  (Stewart v. Cox, 55 Cal.2d 857, 13 Cal.Rptr. 521, 362 P.2d 345.)   Or the jury might have concluded that the railroad was not required to anticipate and guard against highly extraordinary and dangerously makeshift methods used by longshoremen to free a stuck door, which became a superseding cause of plaintiff's injuries and displaced the negligence of the railroad as a legal cause of the injury.

But the nonsuit took this question from the jury and determined the issue of causation as a matter of law.   I do not think this is an appropriate way to solve questions of causation and probability.   In a case whose facts are within the common range of experience, as here, I think the problem of foreseeability in legal causation is most appropriately solved as a matter of fact.

The relation of foreseeability to legal causation was considered in Gibson v. Garcia, 96 Cal.App.2d 681, 684–685, 216 P.2d 119, where a judgment in favor of the defendant Los Angeles Transit Lines was reversed.   The transit company was charged with maintaining a wooden pole in a weakened and defective condition which fell upon plaintiff when it was hit by an automobile negligently driven by another defendant.   In sustaining a cause of action against the transit company the court said:  “It is well-settled that proximate causation is not always arrested by the intervention of an independent force.   If the original negligence continues to the time of the injury and contributes substantially thereto in conjunction with the intervening act, each may be a proximate concurring cause for which full liability may be imposed.  [Citing cases.]

“Respondent appears to contend that it is absolved from liability since it was not foreseeable that a motorist would negligently collide with its pole with such force as to cause it to fall upon plaintiff.   However, in order to prevent an intervening act from being a superseding cause which will relieve the defendant of responsibility for his negligence, the law does not inevitably require that the precise act be foreseeable.   Numerous cases have declared that if the defendant's conduct exposed persons in the class to which plaintiff belongs to a foreseeable risk of injury, and his act or omission contributes substantially to injury of that nature actually occurring, he may be held liable notwithstanding the fact that an unforeseeable independent intervening act is a concurring cause.”

A further aspect of legal causation is raised by the defendants' argument that plaintiff's injuries were the exclusive result of his own acts and conduct, for which he must bear exclusive responsibility.   The railroad argues that plaintiff brought about his own injuries by voluntarily attacking an inert object which, before his attack, presented no danger of injury to anyone.

Without doubt, the acts of the injured person were necessary forerunners to his injuries, and if he had not taken part in the attempt to open the hopper door he would not have been injured.   As with a housewife facing an intractable tin of sardines, had she thrown the tin away she would never have cut herself in trying to open it.   However, the possibility that one would escape injury by doing nothing does not destroy the train of legal causation arising from the fact that one did something one could be expected to do.   For example, one who negligently blocks the sidewalk and diverts a pedestrian into a place of danger in the street where he is injured may be held liable to the pedestrian.  (Hansen v. Market Street Ry., 64 Cal.App. 426, 221 P. 955;  Jones v. City of South San Francisco, 96 Cal.App.2d 427, 215 P.2d 25.)   The same liability applies to the driver of a vehicle illegally parked on the highway.  (Inai v. Ede, 42 Cal.App.2d 521, 109 P.2d 400;  59 Cal.App.2d 549, 139 P.2d 76.)   In these cases it would have been possible for the pedestrian to use some other street, or go around the block, or change his plans, or go back where he came from, as in the present case it would have been possible for the longshoremen to make no effort to free the stuck hopper door.   The critical element is what people can be expected to do under normal circumstances, i.e., the foreseeable factor.   If the consequence is reasonably foreseeable from the conduct then legal causation between the injury and the breach of duty may be inferred.  (Bilyeu v. STandard Freight Lines, 182 Cal.App.2d 536, 6 Cal.Rptr. 65;  Champagne v. A. Hamburger & Sons, 169 Cal. 683, 147 P. 954;  Gibson v. Garcia, 96 Cal.App.2d 681, 216 P.2d 119.   In the present case it is certainly foreseeable that the consignee would make some attempt to open a stuck hopper door, and there was evidence that the railroads knew of previous practices involving such attempts.  (Maher v. Chicago, M. & St. P. Ry., 7 Cir., 278 F. 431, 434.)   One could anticipate that attempts to pen would follow an established pattern from simple efforts involving little or no risk of personal injury, to increasingly complicated applications of force involving an increased danger of personal injury.   At some point the increase in force may become so disproportionate to the problem to be solved that it assumes the quality of an unforeseeable consequence and absolves the original negligent supplier from liability from resulting injuries.   (Gonzalez v. Derrington, 56 Cal.2d 130, 133, 14 Cal.Rptr. 1, 363 P.2d 1.)   To take an extreme example—if the longshoremen after having tried lesser means to open the stuck door had resorted to dynamite, we could safely declare as a matter of law that the negligence of the original supplier was not the proximate cause of injuries caused by flying steel launched by the explosion of the dynamite.  (Cf. Gonzalez v. Derrington, supra.)   But absent such an extreme measure we cannot hold as a matter of law that a superseding cause absolved an original wrongdoer from the consequences of its negligence.

On the question of foreseeability, I find instructive the case of Ferguson v. Moore–McCormack Lines, 352 U.S. 521, 77 S.Ct. 457, 1 L.Ed.2d 515.   There petitioner brought suit for negligence under the Jones Act for injuries incurred while serving as a second baker on respondent's passenger ship to Brazil.  “Among his duties, he was required to fill orders of the ship's waiters for ice cream.   On the date of the accident, he had received an order from a ship's waiter for 12 portions of ice cream.   When he got half way down in the two-and-one-half gallon ice-cream container from which he was filling these orders, the ice cream was so hard that it could not be removed with the hemispherical scoop with which he had been furnished.   Petitioner undertook to remove the ice cream with a sharp butcher knife kept nearby, grasping the handle and chipping at the hard ice cream.   The knife struck a spot in the ice cream which was so hard that his hand slipped down onto the blade of the knife, resulting in the loss of two fingers on his right hand.”  (352 U.S. at 521–522, 77 S.Ct. at 457.)   The United States Supreme Court upheld a verdict for petitioner over the objection it was not reasonably foreseeable that petitioner would use a knife to chip frozen ice cream.   In rejecting this argument the court said (p. 523, 77 S.Ct. p. 458):  “It was not necessary that respondent be in a position to foresee the exact chain of circumstances which actually led to the accident.   The jury was instructed that it might consider whether respondent could have anticipated that a knife would be used to get out the ice cream.   On this record, fair-minded men could conclude that respondent should have foreseen that petitioner might be tempted to use a knife to perform his task with dispatch, since no adequate implement was furnished him.”

The parallel between the Ferguson case and the present one is close.   In each case defendant's neglect of duty created a condition which prevented plaintiff from performing his work.   In each case plaintiff improvised makeshift remedies to overcome the difficulty caused by defendant's negligence.   In each case plaintiff was injured in the course of his improvisation.   As in Ferguson, the question of foreseeability should go to the jury.

IV

The final contention of Santa Fe is that its negligence was not the sole contributing cause of plaintiff's injuries but that the negligence of the longshoremen, including plaintiff, in attempting to free the stuck hopper door by dangerous methods carried equal responsibility for the accident.   This argument attributes the ultimate injuries to two events, the railroad's neglect, and the neglect of plaintiff, and is merely a contributory negligence.   Santa Fe argues that once the condition of the mechanism became known to plaintiff he was negligent in participating in attempts to open the door by makeshift and dangerous methods.

This argument implies that plaintiff was negligent because he took action which was to vigorous and too dangerous for the situation with which he was confronted.   Here again we have a problem of degree.   Clearly plaintiff was expected to take some action to free the mechanism and restore it to operation.   He was expected to use reasonable force to turn the ratchets, and its appears he was expected to do some pounding with a sledge hammer to unfreeze the hopper door.   The defense of contributory negligence clearly turns on the question how far in the spectrum of efforts running from the simplest and easiest to the most complicated and most dangerous plaintiff should have gone in his efforts to open the hopper door.   In the absence of specific instructions from the railroad as to the procedure to be followed for stuck hopper doors this question remains one proportion to be answered by the verdict of a jury.   Concededly, at some point plaintiff might resort to methods whose danger was out of proportion to the mischief to be remedied and whose use would amount to contributory negligence.   But we cannot say as a matter of law that the time had arrived, particularly since contributory negligence is an affirmative defense whose burden of proof rests on the defendants and not on plaintiff.

Finally, even if we assume that negligence on the part of the longshoremen contributed to the accident, we have the further question whether such negligence may be properly attributable to this plaintiff.   The evidence suggests that Glusac was acting in response to orders from his superiors.   Even if the foremen in charge of the longshoremen were careless in the methods they followed in attempting to open the hopper door, it does not necessarily follow that such carelessness is attributable to Glusac.

v.

Under my analysis there may be differences in the liability of Pacific Electric Railway and of Santa Fee.   If Pacific Electric caused a chattel to circulate without periodic inspection and systemic maintenance, then it may be held liable under the same reasoning that applies to Santa Fe, the owner of the chattel.   But if Pacific Electric received sealed loaded cars from Santa Fe for delivery to the docks and after unloading redelivered them immediately to Santa Fe, then it would have had not opportunity to inspect and maintain the unloading mechanism and would not be obliged to do so in the exercise of due care.   Here again these are factual matters to be established by the defense.

I would reverse the judgment of nonsuit and remand the case to the trial court for retrial.

FOOTNOTES

1.   The plaintiff testified:  “They have called railroad companies, safety engineers called the railroad and had them down there and told them to fix them cars and to take care of them cars, that they refused to work them, but when we are sent on a job, your work is directed, and you are supposed to get the cargo out of them the best way you know how, and you are getting paid to do it, and you can't refuse it.   Of course, you can refuse if you see you are going to get killed or hurt.“ * * *“ * * *.  You can tell them to go to hell, as far as that goes.   But right away there is a work stoppage and right away the lawyers and the papers are screaming longshoremen refuse to work, and they're a bunch of communists.   That's the truth.   That's exactly the truth.   So how the hell you going to win?”

ROTH, Presiding Justice.

HERNDON, J., concurs.