Fernandez v. Consolidated Fisheries, Inc.

• Decision Date: 13 April 1953
• Citation: 117 Cal.App.2d 254,255 P.2d 863
• Court: California Court of Appeals Court of Appeals
• Parties: FERNANDEZ v. CONSOLIDATED FISHERIES, Inc. CITY AND COUNTY OF SAN FRANCISCO v. CONSOLIDATED FISHERIES, Inc. Civ. 15387.

Page 863

255 P.2d 863

117 Cal.App.2d 254

FERNANDEZ v. CONSOLIDATED FISHERIES, Inc.

CITY AND COUNTY OF SAN FRANCISCO v. CONSOLIDATED FISHERIES, Inc.

Civ. 15387.

District Court of Appeal, First District, Division 1, California.

April 13, 1953.

Hearing Denied June 11, 1953.

Hadsell, Murman & Bishop and Joseph L. Alioto, San Francisco, for appellant.

Belli, Ashe & Pinney, San Francisco, for respondent.

PETERS, Presiding Justice.

Plaintiff, a street sweeper employed by the city of San Francisco, brought this action for personal injuries alleged to have been caused by the negligence of one Tringali employed by defendant corporation as a truck driver. The city intervened to recover payments made by it to or on behalf of plaintiff under the Workmen's Compensation Act. Pursuant to its construction of the jury's verdict the trial court entered judgment in favor of the plaintiff for $50,000, and in favor of the city for $8,813.87. Defendant corporation appeals.

This is the second trial and appeal in this case. On the first trial the jury brought in a verdict for defendant. A new trial was granted by the trial court because of errors in the instructions. This was affirmed. Fernandez v. Consolidated Fisheries, Inc., 98 Cal.App.2d 91, 219 P.2d 73. On the present appeal the defendant challenges certain instructions, and also contends that the judgment allows plaintiff and the city a double recovery for certain elements of damage. We find no prejudicial error in the instructions except those that relate to the claims of the intervener, but we do find that under the instructions the jury was erroneously told that it could allow double recovery for certain elements of damage.

The evidence on the two trials was substantially the same. (See the prior opinion for a detailed summary of the evidence on the first trial.) On this appeal, of course, this court must interpret the evidence and the reasonable inferences therefrom in favor of the plaintiff and resolve all conflicts in his favor. So interpreted, the record shows the following:

The accident occurred about 11 a. m. on the clear, dry morning of March 26, 1947, at the intersection of Golden Gate Avenue and Steiner Street in San Francisco. Golden Gate Avenue runs east and west and is a stop street, while Steiner runs north and south. One of plaintiff's duties as street sweeper was to notify persons who drop articles in the street to pick them up. Plaintiff testified that, while acting in the course of his employment and while crossing Steiner Street at its intersection with Golden Gate in the pedestrian lane, he noticed defendant's truck driven by Tringali approaching from the south on Steiner Street. Defendant's truck had a flatbed and an enclosed cab. The tailgate of the truck was down. Plaintiff testified that he then saw on the street about fifty feet in back of the truck, and in the same traffic lane, a large box, that he had the impression and believed that the box in the street was similar to those on the truck, and that he inferred that it had dropped from the truck. While it is admitted that a large box was in fact in the street, there is no direct evidence that the box dropped from defendant's truck. Tringali admitted that, after the accident, he saw the box in the street, but testified that he could account for all boxes on the truck and that the box had not been dropped by him. He admitted that he did not see the box while driving down the street. The evidence on this issue need not be further reviewed. Suffice it to say that the evidence and the reasonable inferences therefrom support the implied findings of the jury that the box dropped from defendant's truck, and that plaintiff reasonably believed that it had so been dropped.

Plaintiff further testified that, upon observing the box, and while the approaching truck was still some distance from the intersection, he started waving his arms and yelling to the driver that he had dropped a box; that the truck pulled about two feet into the intersection and stopped; that as the truck approached plaintiff saw Tringali look straight at him; that when the truck stopped plaintiff moved over to the side of the truck and grabbed the door handle and started to open the door opposite to the driver, yelling that the driver had dropped a box; that Tringali looked straight at him and nodded his head; that while plaintiff still had his hold on the door handle, and while the door was open, Tringali started his truck with a jerk which closed the door; that he was thrown off balance; that he gripped the door handle to keep from being thrown; that he could not get on the running board; that he was dragged some fifteen to twenty feet, all the time trying to grab something with his other hand and hollering; that he held on with his right hand to save his life; that he finally lost his grip and tried to throw his body away from the truck; that he fell and the double right rear wheels of the truck ran over him. The truck then stopped. Plaintiff was then in the street about fifteen feet in back of the truck. He suffered severe, permanent and disabling injuries.

Tringali testified that he did not see plaintiff at all until after the accident. This, and other testimony by this witness, was obviously not believed by the jury. It must have believed that Tringali saw plaintiff, knew he was at the side of the truck and opening the door, but started up in reckless disregard of plaintiff's safety. He heard, or should have heard, plaintiff yelling at him. Defendant argues that there was no need for plaintiff to continue to hold onto the door handle after the truck started, and that he needlessly continued to hold on in mere stubbornness. It was a jury question as to whether plaintiff acted as a reasonable man in continuing to hold onto the handle. It is easy enough for defendant, in retrospect and with plenty of time for analysis, to figure out how plaintiff could have avoided being hurt. But, because of Tringali's actions, plaintiff did not have any time to think or to analyze the possibilities. The jury evidently believed that when the truck started up plaintiff was thrown off balance, retained his hold on the handle to keep from being thrown, and that such actions were reasonable under the circumstances. These beliefs are supported by the evidence and the reasonable inferences therefrom. They cannot be successfully attacked on this appeal.

Before discussing the major contention made on this appeal in reference to the claimed double award of certain elements of damage, the contentions of appellant in reference to the other matters should first be considered.

There exists in San Francisco an ordinance prohibiting the throwing of rubbish in the street. A copy of this, and other related ordinances, is contained in a booklet given to every street cleaner. This ordinance was introduced into evidence and the trial court gave an instruction based upon it. The defendant made no objection to its introduction except as to one inapplicable sentence which the plaintiff voluntarily deleted. Defendant having made no objection is now in no legal position to urge that no proper foundation was laid for its introduction. See cases collected 3 Cal.Jur.2d 634, § 156.

The instruction reads as follows:

'The plaintiff has offered into evidence and you must accept it now as the law, that ordinance of the City and County of San Francisco, to-wit, Section 33, which was in effect at the time of the accident in question:

"Rubbish, etc.--Throwing on streets prohibited.

"It shall be unlawful for any person or persons to put, place, sweep, throw, brush or in any other manner deposit any rubbish, paper, cards, newspapers, wrapping, or any wrapping paper whatsoever of any kind, string, cord, rope or other binding or fastening material, sweepings, dirt or debris or discarded material of any kind or character upon any sidewalk, alley, street, gutterway or other public place in the City and County of San Francisco.'

'Further, I charge you that if the defendant corporation, Consolidated Fisheries, Inc., through its agent and driver, Carmelo Tringali, violated, whether knowingly or unknowingly, this section of law on the 27th [26th] day of March, 1947, at Steiner Street and Golden Gate Avenue in the City and County of San Francisco, then you may consider this fact, if you find it to be a fact, among other circumstances, in determining whether the defendant was negligent.'

Defendant claims that the instruction is erroneous because there is insufficient evidence that the box dropped from the truck and because, even if it did, there is no evidence that the box was a proximate cause of the accident. These contentions are without merit. The testimony of plaintiff as to the location of the box in the highway, its similarity to the boxes in the truck, and Tringali's testimony that he had not seen the obviously visible box in driving down the street, permits the reasonable inference that the box had been dropped from the defendant's truck.

So far as proximate cause is concerned it is apparent that if the jury found, as it apparently did, that the box dropped from the truck, then it could find that the dropping of the box was a link in the chain of causation. The ordinance, among other things, was intended to prohibit the dropping of rubbish or boxes in the street. The plaintiff as a street sweeper was obviously one of the group intended to be protected by the ordinance. It is reasonable to suppose that, among other things, the ordinance was intended to protect those working in the streets from traffic hazards.

Defendant cites and places some reliance on the decision of this court in Noble v. Cavalier Restaurant, 106 Cal.App.2d 518, 235 P.2d 396, where the same ordinance was introduced and an instruction given to the effect that violation of the ordinance constituted negligence per se. Here the instruction merely told the jury that it could consider such...