Cobb v. Southern Pac. Co.
| Decision Date | 21 June 1967 |
| Citation | 251 Cal.App.2d 929,59 Cal.Rptr. 916 |
| Parties | Howard M. COBB, Plaintiff, v. SOUTHERN PACIFIC COMPANY, a corporation, Defendant and Respondent, Gordon Keeter, Defendant and Appellant. Civ. 11440. |
| Court | California Court of Appeals Court of Appeals |
Rust & Hoffman, Sacramento, by Ellis J. Horvitz, Los Angeles, for appellant.
Diepenbrock, Wulff & Plant, by James Diepenbrock, Sacramento, for respondent.
This is an appeal from a judgment of the Superior Court of Sacramento County. Plaintiff Howard M. Cobb filed suit against the Southern Pacific Company seeking recovery under the Federal Employers' Liability Act, 45 U.S.C.A. sec. 51 et seq., for personal injuries allegedly sustained on or about July 12, 1962. Cobb later amended his complaint joining Gordon Keeter and Drywall Supply Company, Inc., as parties defendant and alleging that all defendants negligently caused plaintiff's injuries. Nonsuit was granted in favor of Drywall Supply Company, Inc. Trial was had to a jury as between Cobb and Southern Pacific and Keeter, and the jury returned a verdict in favor of Cobb and against both Southern Pacific and Keeter. Keeter paid the judgment and then filed proceedings for contribution pursuant to sections 875--878, Code of Civil Procedure. Southern Pacific defended upon the ground that it was the beneficiary of an implied indemnity, running from Keeter to it. The trial court ruled that Southern Pacific Company was entitled to be indemnified by Keeter and denied the motion for contribution.
Cobb was a switchman who was injured while working for Southern Pacific. The injury occurred in an industrial area near North Sacramento called 'The Ben Ali Area.' Sometime prior to July 9, 1962, Drywall Supply, Inc. had ordered a flatcar load of plasterboard from Kaiser Gypsum Company for resale to Gordon Keeter, and on July 9 a flatcar with a load of plasterboard was spotted by Southern Pacific on a team track in the Ben Ali area. This flatcar load of plasterboard had been shipped by Kaiser Gypsum Company from Antioch, California, and was consigned to Drywall Supply, Inc., in care of Gordon Keeter. The flatcar was equipped with four iron bars ('swaybars'), each of which was nine-feet long. These swaybars were permanently secured at the top corner of each bulkhead, approximately seven feet above the flatcar's deck, and when in use extended on a 45 angle down toward turnbuckles which fastened them to the side of the flatcar. The turnbuckles fastening the swaybars in position were designed to be unfastened to permit the bars to fall to a vertical position in order to facilitate the unloading of the plasterboard. Keeter and his employees unfastened each of the four swaybars during the process of unloading the plasterboard. The unloading was completed on July 11, 1962, at about 5 p.m., and between that time and 6 p.m. an employee of Drywall Supply, Inc., telephoned Southern Pacific and requested that it pick up the unloaded flatcar. At about 3:30 a.m. July 12, 1962, Southern Pacific sent a switching crew, including Cobb, and a switch engine with crew to the place where the flatcar was spotted for the purpose of picking up the flatcar and returning it to Southern Pacific's yards. Except for a standard-size hand lantern carried by Cobb and each of his fellow switchmen, there was no artificial lighting in the area and it was dark. During these switching operations Cobb stepped to the side of the flatcar and pulled the cutting lever to open the couplers that connected the flatcar to an adjacent boxcar that had been spotted along with the flatcar. On signal the switch engine drew the flatcar away from the boxcar. As the two cars separated, Cobb heard a scraping sound, following which he was struck on the head by an object he had not seen. This object was later ascertained to be a swaybar that someone had thrown over the top of the flatcar's bulkhead and left leaning against the adjacent boxcar. As the two cars drew apart this bar fell, injuring Cobb.
The jury found Keeter responsible for the negligent misplacement of the swaybar so that when the cars drew apart it fell, and further found Southern Pacific negligent in failing to discover the misplacement of the swaybar before separating the cars. The jury found that the negligence of Keeter and the negligence of Southern Pacific constituted proximate causes of Cobb's injuries and that in this aspect they were joint tortfeasors.
Keeter contends on appeal that, as a...
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