Bedford v. Bosko
| Decision Date | 19 June 1963 |
| Citation | 31 Cal.Rptr. 727,217 Cal.App.2d 346 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Carl BEDFORD, Plaintiff and Appellant, v. Nick BOSKO, Bosko Engineering Company, and Nick Tomovich and Son, Defendants and Respondents. Civ. 26235. |
Clifton D. Klahs, Los Angeles, for plaintiff and appellant.
Parker, Stanbury, McGee, Peckham & Garrett and Roger Roberts, Los Angeles, for defendants and respondents Bosko.
Gary W. Sawtelle, Los Angeles, for defendant and respondent Tomovich.
Plaintiff is appealing from a judgment of nonsuit in his action for damages for personal injuries sustained while driving his automobile on the Hollywood Freeway. Defendants are members of a joint venture who were operating a large truck on the same freeway.
It is necessary here to review the evidence in the light of the familiar rule that a nonsuit may be affirmed on appeal only when there is no substantial evidence to support a judgment for plaintiff, indulging in every legitimate inference which may be drawn in plaintiff's favor from that evidence. (Estate of Lances, 216 Cal. 397, 400, 14 P.2d 768.)
Plaintiff testified that about 9:30 a. m. on July 6, 1956, he was driving inbound on the Hollywood Freeway. Near the Barham Boulevard overcrossing, he observed defendants' truck standing in the right-hand lane. Another truck was ahead of defendant's truck and there was a chain between them. As plaintiff came abreast of the chain, he saw it break. He heard a noise and saw his windshield glass shatter in front of his face and felt a pain in his left eye. He stopped his car, but police officers who were directing traffic around the two trucks ordered him to move on. Subsequent inspection of plaintiff's windshield showed that some chips of glass were missing from its inner surface. There was evidence that the injury to plaintiff's left eye was serious, but the nature and extent of the injury are not material on this appeal.
Defendants' driver, called as a witness by plaintiff, described defendants' vehicle as a two-axle truck pulling a two- or three-axle low-bed trailer. It was loaded with two-inch water pipe, the load being three to four feet high and six or seven feet wide. The driver had no idea as to the weight of the truck and its load.
As the truck approached the Barham overcrossing from the north its power failed, and it came to a stop on the up-grade about 100 or 200 feet south of the crossing. At the time the driver did not know the cause of the failure. He later learned that 'The sleeves went out of the engine and the engine froze up.' He first put blocks behind the wheels to prevent the vehicle from rolling backward. Then he hailed a passing truck and asked for a two. The other driver agreed. Defendants' driver then took a chain which was used to hold the load and connected it between the two trucks. The links of this chain were described as having an inside diameter of about a half-inch and an outside diameter of an inch to an inch and a quarter. Defendants' driver inspected this chain and it 'looked good.' When the front truck attempted to tow, the chain snapped approximately in the middle.
The driver of the other truck then offered his chain, which he said was bigger. Again when the town was attempted the chain snapped. The other driver then picked up the pieces of his chain and drove away. Up to this time the police had not arrived at the scene.
Shortly afterward police officers did arrive and asked defendants' driver how they could contact his employer. He said he did not know. He had no instructions as to what to do in case of a breakdown. At this time the traffic was heavy and was backing up behind the stalled truck. The police offered to stop a truck and request a tow. Defendants' driver agreed to this. The officers then stopped a truck whose driver agreed to help. This driver took a chain off his load and connected it between the two trucks. Defendants' driver did not assist in this, nor did he inspect the chain. He remained 15 or 20 feet away from the chain. However, he gave his consent to have the other truck attempt the tow. After the chain was connected, the trucks were 6 to 8 feet apart. Defendants' driver then climbed into his cab and the tow was attempted. This third chain also broke about the middle. All of this time, heavy traffic was passing by in the adjacent lane.
Eventually, by the combined effort of one truck pulling and another pushing, defendants' vehicle was brought to the top of the grade, from which it coasted to a safe parking place. The towing truck then went on its way. Its driver was never identified. None of the three chains was produced at the trial. There is no way to determine irom the evidence whether the chain broke because it was unsuitable or because the drivers, one or both, subjected it to unnecessary stress.
From the combination of circumstances the jury could reasonably have inferred that when the third chain broke, a fragment struck plaintiff's windshield, causing a glass chip or sliver to pierce plaintiff's eye. Granted that a flying object of some other origin might have caused the damage, it was for the jury to say whether it was not reasonably probable that the blow which was simultaneous with the breaking of the chain was the result of that break. (Cf. Fallo v. New York, New Haven & Heartford R. Co., 123 Conn. 81, 192 A. 712.)
From the fact that the chain broke the jury could also have inferred that someone had failed to use due care. (Cf. Weddle v. Loges, 52 Cal.App.2d 115, 124, 125 P.2d 914; Duran v. Yellow Aster Min. etc. Co., 40 Cal.App. 633, 181 P. 395; Koskela v. Albion Lumber Co., 25 Cal.App. 12, 22, 142 P. 851.) A chain is used in pulling a heavy object because chains are especially designed to withstand tension. It is a matter of common knowledge that if the chain is strong enough and is properly used, it will not ordinarily break.
Common experience also teaches that when a chain breaks under tension, the ends are likely to whip and fragments of a broken link may fly, thereby endangering anyone in the immediate vicinity. The greater the force applied to the chain, the more violent is the reaction if a link breaks. The amount of force which must be applied to a chain in order to move a truck and trailer loaded with steel pipe on an upgrade is considerable. It may reasonably be inferred that a prudent person, having due regard for the safety of passers-by, would not attempt such an operation without taking some precautions which were not shown to have been taken in this instance.
There is no contention that plaintiff was at fault. In the pretrial order contributory negligence was not made an issue.
Defendants contend that even if it be inferred that someone was negligent, there is no evidence that defendants or their driver were negligent, or that they were in control of the instrumentality which caused the injury. This view of the evidence overlooks some inferences which could reasonably be drawn as to the participation and responsibility of defendants.
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