WILLIAMS v. FIELD TRANSP CO (1946)

Action for damages for personal injuries wherein the doctrine res ipsa loquitur was invoked. From the order granting a new trial after verdict and ensuing judgment in their favor, defendants appeal. It is contended that the court abused its discretion in (1) that the evidence was not sufficient to establish defendants' neglect and (2) that plaintiff's own negligence contributed to his injuries.

Events at the Scene of the Injury.

A Sterling truck and trailer of defendant company operated by defendant Brown called at the yard of the Industrial Engineering Company, hereinafter referred to as Industrial, from which forty 16-inch pipes, 40 feet in length were to be transported. All parties engaged in the loading operation were employees of Industrial except Brown. The truck and trailer were equipped with bolster, blocks, stakes, chains and binders—but both are treated as one unit and hereinafter referred to as ‘the truck.’ After having heard the suggestion of the yard superintendent, Mr. Trimmell, as to the advisable method of loading his cargo, Brown parked his truck on a level space indicated by Carl Cokely, crane operator. He headed westward parallel with and south of the crane which stood south of and parallel with the pipe rack. The crane's 30-foot boom pointed easterly and operated in a horizontal are in conveying pipe from the rack to the truck. A cable comprised of loadliness hung from the boom and at its extremity was attached a spreader bar at each end of which was a hook suspended by a rope. One of these hooks was inserted into each end of a pipe in the loading process and was removed when the pipe came to rest on the truck. The spreader with its dangling hooks was then returned to the rack whence the loading process was repeated.

Brown as truck operator commanded the loading operations. Standing by the cab facing the east he received the west end of the pipe, placed it securely on the truck, then released the strain and removed the hook. Plaintiff was one of the two tag-line men. As the boom moved a pipe to the truck he held on to his rope until the pipe was released by Brown. After a pipe had been deposited on the truck he regained and held to his hook as it returned to the rack. In doing so he could go no convenient route other than easterly, between the truck and the crane. One John Martin was the tag-line man in charge of the east end of the pipe. He released his hook just as that at the west end was disengaged by Brown. Prior to the commencement of the loading Trimmell suggested to Brown that he load by the pyramiding method, thereby necessitating three trips for the 40 pipes. Brown preferred to use the tier method whereby he could convey 20 pipes in one load. Of the two the pyramiding method was the more nearly safe by reason of the fact that after the first row had been laid each pipe thereafter was held secure by two pipes beneath it, whereas in the tier method after five pipes had been placed a stringer was placed on top and near each end of the pipes. Immediately prior to the accident stringers had been placed on top of the second row and the fatal pipe was brought over by the crane under the guidance of the tag-line men and lowered to a point at which Brown took plaintiff's hook and guided the pipe to a position of his own selection. After removing the hook Brown handed it to plaintiff who proceeded easterly about 15 feet on his eastward course beside the truck when he was struck by the eleventh pipe which had rolled off the north side.

The Jury and the Instruction.

Although the jurors were instructed to apply the doctrine of res ipsa loquitur they returned a verdict for defendants. The finding implied by such verdict was that defendants gave such an explanation of the accident as exculpated them. If such explanation appears in the record the trial court erred in granting a new trial. If it is not found, the ruling was correct and the order should be affirmed.

The Facts Undisputed.

The testimony is uncontradicted that a truck driver selects his own method of loading his truck. Brown chose the tier method, called also strip or liner method, knowing it to be more dangerous; he directed the west end of each pipe to rest; he had taken hold of the pipe before it fell; it is understood that such pipe should be always placed in the center of the load and be secured by the operator, and Brown understood that such was his duty; but there was evidence that instead he placed it near the north edge and removed the hook as soon as the strain was released from the cable that held it. There was no connection between the pipe and the crane after the hooks were taken out. The pipe's weight was then on the truck; in order for plaintiff to receive the hook from Brown he had to stand between the crane and the truck, and usually the tag-line men direct the hooks back to the stack of pipe; unless the empty hooks are steadied they are likely to hook into equipment or men who may be in the way.

Brown used 1″ x 6″ timbers for the stringers to support the row of five pipes of a total weight of 7500 pounds, whereas it is the customary and safe practice for truck operators to use 2″ x 6″ stringers with 2″ x 4″ blocking. He directed the tag-line men when to release the pipes and where to place them. Martin did not remove his hook from the pipe until directed to do so by Brown. Thereupon Martin while holding his hook walked toward the rack. On the occasion of the accident he had proceeded 10 feet to the north of the truck when the eleventh pipe rolled onto plaintiff who had followed the easterly course by the side of the truck pursuant to the orders of the yard foreman.

Plaintiff did not know why the pipe rolled off. Brown made no explanation of the event. The reasonable inference is that a stringer was too weak or the pipe was placed obliquely across the stringers, or was carelessly placed too near the edge of the truck. If the east end of the pipe rolled off first, as claimed by appellants, that does not excuse Brown. It was his duty to put each pipe in a secure position. In defense of his conduct of the operations Brown attempted to shift the blame for the accident onto plaintiff because he had remarked to Williams that it was dangerous to walk beside the truck. But Williams was not told by Brown that the latter would have stringers too weak or that a pipe would be placed in a wrong position. Although the driver may have scotched his end of the pipe, that did not suffice to keep the pipe secure if the east end might roll off the stringer. Martin was subject to Brown's orders in the loading process in so far as the placement of the pipes on the truck and the releasing of the hooks were concerned.

Res Ipsa Doctrine Correctly Applied.

Where the driver of a truck is in sole charge of loading heavy 16-inch iron pipes onto his truck in a yard where the pipes await removal and is assisted by the employees of the yard's proprietor, and in some manner a pipe falls from the truck onto and injures one of such employees and the injured man is unable to account for the cause of the pipe's falling, the doctrine of res ipsa loquitur is applicable. Michener v. Hutton, 203 Cal. 604, 612, 265 P. 238, 59 A.L.R. 480; Helms v. Pacific Gas and Electric Co., 21 Cal.App.2d 711, 713, 70 P.2d 247; Windas v. Galston & Sutton Theatres, Inc., 35 Cal.App.2d 533, 535, 96 P.2d 170. Where in an action for personal injuries only general negligence is alleged and the instrumentality which caused the injury was under the exclusive control of defendant and the accident is of the variety that does not occur in the ordinary course of events if proper care by the defendant has been exercised, the doctrine of res ipsa loquitur applies; and unless defendant so explains the accident as to rebut the inference of his negligence plaintiff is entitled to recover. And that the defendant does not known the cause is no explanation. Ireland v. Marsden, 108 Cal.App. 632, 643, 291 P. 912; Cooper v. Quandt, 105 Cal.App. 506, 508, 288 P. 79; Druzanich v. Criley, 19 Cal.2d 439, 444, 122 P.2d 53.

No Abuse of Discretion.

Where the jury has been properly instructed with reference to the res ipsa doctrine it is ordinarily a question for the jury to determine whether the prima facie case has been overcome by the defendant. Helms v. Pacific Gas & Electric Co., supra; Druzanich v. Criley, supra. But if in an action in which the doctrine has been applied the jury has ignored the instruction and returned a verdict for the defendant, the motion for a new trial is properly granted if no exculpatory evidence was introduced. Furthermore, where there is a substantial conflict in the evidence the action of the trial court in vacating the judgment in favor of defendant is conclusive upon the appellate court. Ireland v. Marsden, supra, Cooper v. Quandt, supra; Gordon v. Roberts, 162 Cal. 506, 508, 123 P. 288. And if any evidence was received which tended to exculpate the defendant it supplied no more than a conflict of evidence. Under such circumstances, as in the instant case, it cannot be said that the order granting a new trial was an abuse of discretion. McCole v. Merchants Express Corporation, 19 Cal.App.2d 149, 150, 64 P.2d 1130.

No Contributory Negligence.

But appellants contend that the evidence shows that plaintiff was himself negligent and that such negligence contributed to his injuries. No act of plaintiff has been suggested that might reasonably be deemed a lack of care in the performance of his duties. It was not negligence for the tag-line man to walk the route prescribed by his superiors in the work of directing the cargo of the crane to its repository or to rely upon the truck driver to exercise reasonable care in proportion to the perils attendant upon his labors. The evidence is sufficient to show that in the conduct of his duties respondent was not required either to inspect the truck, the stringers, the position in which each pipe was placed, or to inquire of Brown whether he was using stringers of sufficient weight or was securing each pipe in its place on the truck. A workman is held to no higher degree of care than the fair average of his trade. Webber v. Bank of Tracy, 66 Cal.App. 29, 36, 225 P. 41; Thomas v. Southern Pacific Co., 116 Cal.App. 126, 2 P.2d 544. Brown knew that it was the custom of tag-line men in a loading operation such as that here involved to pursue the method and course followed by respondent. He made no objection to the conduct of respondent as he carried the tag-line in loading the first ten pipes. If there was another course that might have with safety been followed it is not shown to have been suggested by defendants.

It is true that in the performance of his duties respondent followed the directions of Industrial. However, the concurrent negligence of the latter does not bar Williams' right of recovery from appellants. Conceding the negligence of one of two joint tort-feasors does not exculpate the other. Jones v. Hedges, 123 Cal.App. 742, 12 P.2d 111; Herron v. Smith Bros., Inc., 116 Cal.App. 518, 2 P.2d 1012. Neither is the applicability of the res ipsa doctrine rendered doubtful by virtue of the fact that there may have been concurrent negligence on the part of Industrial. Kierman v. Herbert M. Baruch Corporation, 20 Cal.App.2d 289, 66 P.2d 748; Juchert v. California Water Service Co., 16 Cal.2d 500, 106 P.2d 886; Strock v. Pickwick Stages System, 107 Cal.App. 298. 290 P. 482; Willard v. Valley Gas and Fuel Co., 180 Cal. 561, 182 P. 32.

Respondent could not have assumed such risks as the negligence of Brown in selecting the stringers, in conveying the pipes to the truck, or in securing them when placed. Scott v. Sheedy, 39 Cal.App.2d 96, 102 P.2d 575; Muskin v. Gerun, 46 Cal.App.2d 404, 116 P.2d 105; Jones v. Hedges, supra.

The order is affirmed.

MOORE, Presiding Justice.

McCOMB and WILSON, JJ., concur.