Bacciglieri v. Charles C. Meek Mill. Co.

• Decision Date: 31 December 1959
• Citation: 176 Cal.App.2d 822,1 Cal.Rptr. 706
• Court: California Court of Appeals Court of Appeals
• Parties: Pompell BACCIGLIERI, Plaintiff and Appellant, v. CHARLES C. MEEK MILLING CO., a corporation, Charles C. Meek Lumber Co., a corporation, and Otis Ledford, Defendants and Respondents. Civ. 9592.

Page 706

1 Cal.Rptr. 706

176 Cal.App.2d 822

Pompell BACCIGLIERI, Plaintiff and Appellant, v. CHARLES C. MEEK MILLING CO., a corporation, Charles C. Meek Lumber Co., a corporation, and Otis Ledford, Defendants and Respondents.

Civ. 9592.

District Court of Appeal, Third District, California.

Dec. 31, 1959.

Rehearing Denied Jan. 25, 1960.

Hearing Denied Feb. 24, 1960.

Andrew J. Eyman, George G. Olshausen, San Francisco, for appellant.

Connolly & Farbstein, Theodore Tamba, San Francisco, for respondents.

PEEK, Justice.

This is an appeal by plaintiff from a judgment entered pursuant to a jury verdict in favor of defendants in an action for personal injuries.

On the date of the accident in question plaintiff, who was a partner in a trucking business, had driven to defendants' lumberyard near Redding to pick up a load of lumber. He was driving a tractor to which were attached two trailers. The defendant Ledford was a night watchman and fork lift operator for the lumber company. Plaintiff and Ledford were the only two persons present in the yard at the time of the accident. The lumber which plaintiff was to pick up was in units approximately four feet high, and each unit was kept intact by steel straps or bands. The procedure followed in loading was for Ledford to pick up a unit on the fork lift and for plaintiff, from his position on the trailer, to direct the placing of the unit on the trailer. Four units had been placed on the rear trailer. The accident involved the fifth, or last, unit which had been placed on top of the others. The primary dispute centers on what was being done with this unit when the accident happened. It was plaintiff's testimony that the lumber in the fifth unit was askew or 'ragged' and would have been a hazard if placed at the bottom of the load. He also testified that he was on top of the load when this unit was put in place. After the unit was first hoisted, Ledford again moved it approximately ten to 12 inches to center it on the load in accordance with signals from the plaintiff. Following measurement of the load, it was decided that it was too high. Plaintiff further stated that he may have told Ledford that the unit had to be plit. He denied having cut the band around the unit but remembered nothing after it 'exploded.' According to Ledford, plaintiff had stated he would split the bundle on top and band it there into two bundles, thus lowering the load. Ledford said that plaintiff obtained the mill's banding tools and cutters and cut the metal band around the unit. At that point the accident occurred. The load came apart and plaintiff was thrown to the ground and injured by falling lumber. The evidence was conflicting concerning the position of the fork lift; that is, whether it was against the load or some distance away. One Donald Jones, the mill manager, testified that when he arrived at the yard about 7 o'clock that evening he noticed the lumber on both sides of the truck with substantially more on one side than the other. The hoist was some ten or 15 feet from the truck and about in the center of the trailer with the level of the forks at approximately the top of the four units. He also noticed that the band was hanging down at one side. He pulled it out and, following an examination, determined that it had been cut. He stated that it was clean-cut and showed teeth marks which the cutters used at the mill always left when bands were cut. He found two of the banding tools at the back of the truck and the cutting tool buried under the lumber at one side of the truck. He further testified that he had never seen a band broken, and that it appeared to him that the band had been cut. It was also Jones' testimony that if a band were broken, a unit of green lumber would, in effect, 'explode.' He also testified that all but one of the units were green lumber, but he did not know if the fifth was green or dry. It was plaintiff's theory that the fork lift had been so negligently operated as to cause the band to break, or that the band had broken either from defects therein or from improper banding of the unit. Defendants claimed plaintiff had cut the band.

The chief assignment of error is that the 'court committed prejudicial error in eliminating proximate cause from assumption of risk.' The court had defined proximate cause in its instructions on negligence and contributory negligence. It had also instructed the jury on the defense of assumption of risk. Plaintiff does not attack the propriety of these instructions but centers...