Davis v. Johnson
| Decision Date | 01 November 1954 |
| Citation | 275 P.2d 563,128 Cal.App.2d 466 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Lawson DAVIS, Plaintiff and Appellant, v. Earl JOHNSON and David T. Locke, Defendants and Respondents. Div. 15976. |
Melvin M. Belli, Martin Field, John F. Moran, and Ashe & Pinney, San Francisco, for appellant.
Dana, Bledsoe & Smith, San Francisco, for respondent.
Plaintiff appeals from a judgment after jury verdict, in favor of defendants.
Question Presented.
The refusal of the court to give offered instructions concerning certain rules of defendants' employer, the State Belt Railroad.
Evidence.
The action was for injuries received by plaintiff when run over by a car or cars of the State Belt Railroad, an agency of the State of California. The sole defendants were two employees of that line, Johnson, the engineer, and Locke, foreman in charge. The accident occurred about 1:15 a. m. near Pier 56, Port of San Francisco. The train's crew consisted of defendants Locke and Johnson, Ramsey (brakeman, since deceased), Conlin (brakeman), and Williams (fireman). They were assigned the work of 'spotting' six freight cars alongside the dock. The movement involved shoving the cars from the north side of Berry Street in a southerly direction into Pier 56. To do this, the cars were first pulled along the Embarcadero down to Berry Street. Then the engine was uncoupled at the north edge of Berry Street and taken south across Berry Street to a switch point, in order to switch the engine around and get it north of the six freight cars, thus making it possible to 'shove' the cars into the pier. After effecting the switch and turning on the tunnel lights into the pier brakeman Ramsey stationed himself at the center of Berry Street, facing east to the Embarcadero. Foreman Locke stood at the north edge of Berry Street. There was a street light and a highway directional sign at the northwest corner of Berry Street and the Embarcadero, just west of the tracks. From the north of the cars the engine was banged into them for coupling purposes. Next, the crew 'stretched' the cars. This consists of pushing them a few feet and then braking the engine. This causes each car to jerk with a loud noise and enables the trainmen to determine whether all the cars are coupled. This operation took place near the intersection of Berry Street and the Embarcadero. Defendant Locke testified that the operation was done in the 'regular' way, to wit, Ramsey jumped on the lead freight car, taking his position on the right front ladder. Ramsey carried a lighted lantern. The other members of the crew were spotted on the right side of the train (except for the fireman, who was on the left side in the engine cab). Thus, signals from Ramsey on the lead car would be visible to Locke on the third car, to Conlin, and then to Johnson in the engine. It is railroad custom to stop a train immediately if one crewman's light disappears from the view of another. This is the reason for having the men all on the same side of the train. Locke testified that Ramsey who was 'riding the point' on the lead car, was not working under his direction as Ramsey was an experienced brakeman. (Due to his death, his version of the accident could not be obtained.) There was an impaired clearance on the left side of the train, in that a man could not safely ride into the tunnel on that side. There was evidence that it would be both unsafe and impractical for a man to ride on the front of the car rather than on the front side ladder. After the six cars had been shoved into Pier 56, and four cars spotted there, and about 3 to 8 minutes after the train entered into the tunnel and the engine was on its way back and had pulled through the tunnel, plaintiff was observed lying between the outside (eastern) rail and a low wall. This would be on the left side of the train as it entered the tunnel, the opposite side from the train crew's position. His severed legs were found between the two easterly tracks. This area is unpaved and is used only by the railroad as an entrance to the tunnel. It is 200 to 300 feet south of the intersection of Berry Street and the Embarcadero and 31 feet south of the paved area. It is plaintiff's contention that while at the intersection of Berry Street and the Embarcadero he saw no trainmen or lights, that, while there is no direct evidence to that effect, an inference could be drawn that as the train bore down on him he could have caught hold of some part of one of the cars, been carried to the point where he was found, lost his hold, and fallen under the train. He expressly negatives any claim that he was dragged from the intersection to the place where he was found, for the reason that the evidence would not support such theory. In order to recover he was required to prove that he was hit, or grabbed the train, while on the intersection, a point where the defendants would owe him the duty of exercising ordinary care to avoid injuring him. If the entire accident occurred where he was found, the defendants' duty was only to avoid wantonly injuring him and there was no evidence that would have warranted a finding that they violated such duty. Defendants contend plaintiff was struck where found. Actually the only evidence that he was struck at the intersection is plaintiff's statement hereafter mentioned. There was no physical evidence that he had been hit or dragged, or that he had been injured other than by having his legs run over. Blood was found on the left rear wheels of the lead car and on the left front wheels of the second car (left as the train entered the tunnel). No blood was found on the front wheel of the lead car. The blood beside the track indicated that the severing took place at the same spot where the body was found. The lighting there was very poor. The police officer found it necessary to use his car headlights and his flashlight to investigate the scene.
Plaintiff testified that the accident happened 'on Berry and the Embarcadero' and that before he got to the track he looked to his right and left and saw nothing coming. When he was in the middle of the track he 'looked right, saw the train going by five feet away, and I didn't know anything.' He did not hear any whistle or bell or any noise and saw no light. He testified that he had spent the day at the hiring hall until 4 p. m., and then that he was not sure about it. He thought he stayed home, then that he did not remember up to about 1 o'clock when he went to the scene of the accident. When asked what the last thing he remembered before the accident was he did not know. In his deposition he did not remember being on the Embarcadero after dark, did not know what time of day he was injured, did not remember seeing a train moving just before he got hit, did remember being at the hiring hall, leaving about 4 and then going to the unemployment insurance office, leaving there about 4:30 to get a bus to go home. He remembered nothing after that. At the trial he denied he had been drinking. In his deposition he admitted drinking 'about two bottles of beer, that was all.' Then he admitted having one drink of rum. After his deposition was written up he made several changes in it. Typical of these are the following: When asked if he remembered knowing anything after 4:15 p. m. he replied, 'No, I don't know anything.' He added to this 'Except just before it hit me at Berry.' He was asked if he was struck right at the corner of Berry and the Embarcadero. He replied, 'No; right close to the track, not at the corner.' He added to the deposition 'But it was at the intersection where people cross.' When asked if he recalled just a little bit before the accident happened he replied 'No.' He added to the deposition 'Except looking before going on track, not seeing anything coming, walking to the middle of the track and seeing the car 5 feet away.' The ambulance attendant testified that the odor of alcohol was very strong on plaintiff. The emergency ward entry record, admitted without objection, stated 'Apparently patient had been drinking.' Dr. Canty, who examined plaintiff at his request shortly before trial, testified that plaintiff told him the last thing plaintiff remembered he was at a union meeting the late afternoon and evening preceding the accident and the next thing he remembered he was in the hospital. Dr. Spalding who treated plaintiff at the Marine Hospital about six months after the accident testified that plaintiff told him he was injured 'at some time and place unknown to him' and that 'he didn't know what happened to him at the time.'
Instructions.
Plaintiff's only complaint is of the failure of the court to give the instructions hereafter mentioned. The evidence shows that the trainmen (other than the fireman) were all on the right side of the train, none on the left side, the side where plaintiff was hit. Locke testified that when Ramsey turned on the switch lighting the tunnel Ramsey walked back to the intersection of Berry and the Embarcadero and stood in about the center of Berry. In the meantime the engine went north of Berry to attach to the northerly end of the cars. After attaching the stretching the cars Ramsey, from his position on Berry Street, signalled Locke. Locke then passed the signal to Conlin who passed it to the engineer. The signalling was done with lanterns. Then, as the engine started to back the cars southerly to and across Berry Street it was customary for Ramsey to swing aboard the lead car and 'ride the point,' that is, the right front ladder. Locke saw Ramsey take that position. This testimony put Ramsey on the crossing and then on the 'point' at a time when plaintiff must have been at the crossing if he were struck there, and not at the place where he was found.
Certain rules of the State Belt were introduced into evidence. The refused instructions related to these rules. They...
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