Church v. Headrick & Brown
| Decision Date | 26 December 1950 |
| Citation | 101 Cal.App.2d 396,225 P.2d 558 |
| Court | California Court of Appeals Court of Appeals |
| Parties | CHURCH v. HEADRICK & BROWN et al. Civ. 14379. |
Tinning & DeLap, J. Vance Porlier, Richmond, for appellants.
Russell F. King, Richmond, for respondent.
Respondent sued several groups of defendants for damages arising from personal injuries sustained by him while assisting in unloading a large steel girder at the plant of defendant Butler Manufacturing Co. at Richmond, California. The jury returned a verdict for $47,500 against Bern Headrick Sr. and Russell Brown, copartners doing business as Headrick & Brown, and Thomas Goff their employee. A motion for judgment notwithstanding the verdict was denied. A motion for new trial was denied, and this appeal was then taken from the judgment by Headrick and Brown only.
We shall summarize the factual situation as disclosed by the record.
The girder in question was 81 feet 7 1/2 inches long, 4 feet 1 3/4 inches high, 26 inches wide and weighed approximately 13 tons. Attached to one side of it was a catwalk built of lumber which, with other gear attached to it, weighed approximately 3 tons. When respondent was injured the girder and catwalk rested on a semi-tractor and dolly, one end on the semi-tractor (on a 'bolster') the other end on the dolly with a considerable part of it overhanging the rear of the dolly. The girder was destined to become a traveling crane to be set up under the roof of defendant Butler Manufacturing Company's factory building over 50 feet above the floor, extending from one side wall of the building to the other, and set on tracks running longitudinally from one end of the building to the other. The 'semi' and its dolly (both called, for short, the truck) belonged to defendant Thomas Rigging Company, and defendant Alfred Dalzell was its driver.
The girder had been purchased by Butler Manufacturing Company from defendant W. J. Ferris, who was in the machinery business in Oakland under a contract which obligated Ferris to deliver it to the Butler factory in Richmond. Ferris contracted with defendant Thomas Rigging Company to haul the girder first from the Ferris plant in Oakland to the plant of defendant Osborn Manufacturing Company in San Leandro (where the girder was to be extended in length 13 feet), and to then haul it from the Osborn plant to the Butler factory in Richmond.
On April 1, 1948, Osborn had finished the work of adding to the girder and it was ready for its final trip. Early that morning defendant Dalzell was preparing to start for San Leandro with his semi-tractor and dolly. Respondent, who had theretofore worked for defendant Thomas Rigging Company, showed up at the Thomas yard at Emeryville looking for work but was told at the office that there was nothing for him that day. Dalzell knew respondent from his former employment with Thomas, and while Dalzell was putting gasoline in his truck he saw respondent waiting around. When Dalzell drove away for San Leandro respondent climbed aboard the truck and after they were under way he asked Dalzell his destination and was told San Leandro. As respondent put it, he went along as company. There is no contention by respondent that he was in the employ of defendant Thomas Rigging Company at any time that day.
At the Osborn plant the girder was lifted by Osborn's crane onto Dalzell's truck. It was part of Osborn's contract with Ferris to do this. In so lifting it a 'choke' sling was used, and the task of lifting it and setting it down on the semi-tractor and dolly was safely accomplished by the defendant Moller who was an employee of Osborn's. It was set on Dalzell's truck on the level 'on an even keel', resting on its 26 inch side. The testimony shows that in handling a piece of equipment of this type the sling around it cannot be released until the girder has been securely fastened to the truck. The process of securing it to the truck, so the testimony shows, is the responsibility of the teamster, and so after it was set on the truck by Moller, Dalzell went about the task of securing it to the semi-tractor and dolly. This was done by four chains, two around the front unit (the semi-tractor) and two around the rear unit (the dolly), the chains being rigged around the load belt-fashion. On each chain was a binder, the function of which is to tighten or 'cinch' the chains so there is no slack whatever left in them.
As already appears the four chains were rigged around the load, two on the front unit of the truck, who on the rear unit. The chains were around the metal part of the load (excluding the wooden catwalk) belt-wise. The two front chains were about 4 feet apart and the two rear chains were about 4 feet apart. The chains ran over the top of the girder, and came down at an angle of about 45 degrees to the side of the truck and then presumably underneath the truck. On each chain, on the right side of the load, and near the top thereof, was the metal binder with a handle thereon. The function of the handle is to cinch or tighten the chains by leverage, and whenever the handles do not exert sufficient leverage to take all slack out of the chains, a pipe longer than the handle is used to exert leverage. Pipes 4 or 5 feet long were used for this purpose by being slipped over the handles (being longer than the handles there was more leverage).
In adjusting the load at the Osborn plant for its final trip to Richmond the pipe method was resorted to, and Dalzell while using the pipe on the handles of the binders had respondent (a large, heavy man) aid him by adding his weight and strength in getting the utmost of pressure on the handles and thus tightening the chains around the metal part of the load. On the trip from San Leandro to Richmond Dalzell stopped the truck and in examining the chains found one of them somewhat loosened. He tightened it with respondent's aid and resumed the trip.
Arriving at the Butler plant the truck was driven to a point within the reach of the crane which was to hoist it from the truck. The truck was headed to the east, which left the dolly toward the west, the right side of the truck (the side on which were the binders) was to the south and the left side of the truck (the side on which was the catwalk) was to the north.
We have already noted that in loading a girder of this type the sling cannot be removed from the load until the chains have been cinched up taut. By the same token in unloading it, the chain binders cannot be released until the sling for unloading the girder has been put around the load. This was done under the direction of defendant Thomas Goff, an experienced rigger and an employee of appellants. He put on a so-called 'cradle' sling, not a choke sling as had been used in loading it at Osborn's. Goff put on the sling and signalled to the crane operator aloft, to slowly hoist, just enough to take the strain off the truck but not enough to do more than that. Obviously this was so that when the binders were released and the chains loosened the load would be safely within the grasp of the sling.
Such was the situation when Goff indicated to Dalzell that the time had come to release the chain binders.
It is probably evident from what has been said respecting the process of tightening the chains sufficiently to hold this 16 ton load securely on the truck during a 15 mile trip from San Leandro to Richmond that the tension on the chains was something to be reckoned with. There is no dispute in the evidence with respect to such tension. Respondent had assisted with the tightening of the chains by the added leverage of pipe plus handle, and had had experience as a teamster in hauling loads which had to be secured to the truck by chains and binders, although he testified that he had never before worked on a load of this type.
He testified that in releasing the binders one could not take hold of the handles thereof. The procedure was to put one's hand underneath the handle and 'flip' it up, otherwise (if grasped) it would break one's arm such was its force when the tension was released. In flipping the handle one had to stand well back to avoid its impact.
When Goff indicated that the binders would be released Dalzell released the two on the rear end of the load without incident. Dalzell then asked respondent to release the two on the front end. Respondent climbed onto the semi-tractor, standing on the lower part of the girder where he had foothhold. With his back to the cab of the truck he flipped the handle of the binder nearest the cab with his hand as indicated and the handle flew up without doing any damage and apparently fell back of its own weight into a flat position. This left but one chain under tension. With his back still to the cab he bent over to release the remaining binder (about 4 feet to the rear of the one he had already released) and as he flipped the handle of that (second) binder the handle of the first binder (already released and recumbent) flew up for the second time. He was in its way and it hit him on the head and knocked him from the truck onto the ground causing the injuries for which he sues. He was thrown away from the truck, toward the south. With the tension of the last binder thus released the load tilted to the left (northerly) on the catwalk or heavy side, in the direction opposite to that in which respondent was thrown.
Respondent admitted that he had flipped these two chain binders 'as a favor' to Dalzell, the truck driver. Dalzell had asked him to do so. He was not an employee of anybody at the time. He had come on the truck for the ride and to keep Dalzell company. He testified, moreover, that he thought he could learn something by going on the trip.
Additional facts will be hereinafter set forth in discussing the various contentions made.
Appellants, in an able and exhaustive brief,...
To continue reading
Request your trial
-
People v. McDaniel
...model under the conditions imposed by the court. (See People v. Kynette (1940) 15 Cal.2d 731, 104 P.2d 794; Church v. Headrick & Brown (1950) 101 Cal.App.2d 396, 415, 225 P.2d 558.) Defendant's further contention that the prosecution failed to establish a proper foundation for admission of ......
-
Courtell v. McEachen
...of. Failure to allege any fact or facts from which the negligence occurred renders the complaint fatal (Church v. Headrick and Brown, 101 Cal.App.2d 396, 225 P.2d 558; Potter v. Richards, 132 Cal.App.2d 380, 282 P.2d 113) for the reason that there is a failure to show a causal connection be......
-
Odell v. Frueh
...substantially similar. Ortega v. Pacific Greyhound Lines, Inc., supra, 20 Cal.App.2d 596, 67 P.2d 702, and see Church v. Headrick & Brown, 101 Cal.App.2d 396, 414, 225 P.2d 558; Daniels v. Johnson, 38 Cal.App.2d 619, 622, 101 P.2d 707; note 85 A.L.R. 479, 480. Exact identity of conditions i......
-
Daggett v. Atchison, T. & S. F. Ry. Co.
...to show a negligent condition at the time of the accident. Helling v. Schindler, 145 Cal. 303, 78 P. 710; Church v. Headrick & Brown, 101 Cal.App.2d 396, 413, 225 P.2d 558. The reason for the rule was well stated in Sappenfield v. Main St. & A. P. R. Co., 91 Cal. 48, 62, 27 P. 590, 593: 'It......