Fernandez v. Consolidated Fisheries
| Citation | 98 Cal.App.2d 91,219 P.2d 73 |
| Parties | FERNANDEZ v. CONSOLIDATED FISHERIES, Inc. CITY & COUNTY OF SAN FRANCISCO v. CONSOLIDATED FISHERIES, Inc. Civ. 14233. |
| Decision Date | 13 June 1950 |
| Court | California Court of Appeals |
Hadsell, Sweet, Ingalls & Murman, San Francisco, for appellant.
Melvin M. Belli, San Francisco, James Sykes, San Francisco, for respondent Ramon Fernandez.
Dion R. Holm, City Attorney, Lawrence S. Mana, Deputy City Attorney of the City and County of San Francisco, San Francisco, for respondent in intervention.
In an action for personal injuries the jury brought in a verdict for the defendant. Thereafter, the trial court, on motion of plaintiff, granted a new trial on the sole ground that certain instructions 'did not fully state the law on trespass.' On all other grounds set forth by plaintiff, the motion was denied. Defendant appeals. The City and County of San Francisco, as employer of the plaintiff, was permitted to intervene for the expenses and compensation it had paid to the plaintiff under the compensation law.
The accident occurred at about 11 a. m. on 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 Street runs north and south. The plaintiff was employed as a street sweeper by the City. As such, it was his duty, among other things, to notify any person who dropped articles in the street to pick them up. On the morning in question, while acting in the course and scope of his employment, and while crossing Steiner Street at its intersection with Golden Gate Avenue, and while in the pedestrian lane, plaintiff testified that he noticed defendant's truck (a ton and a half truck with a flat bed and enclosed cab) approaching the intersection and taveling south on Steiner Street; that when he first saw the truck it was about fifty feet from the pedestrian lane in which he was standing; that just as he saw the approaching truck he saw a box lying in the street in back of the truck; that he did not see the box fall from the truck, but surmised that it had fallen from it; that the box he saw was a large box about four or five feet long; that as the truck came towards him he waved both hands at the driver and yelled 'Your box is falling'; that the truck was only ten feet from him at the time; that the driver looked right at him and nodded his head; that the truck proceeded ahead until it came to the arterial stop sign where it came to a full stop with its front part within the marked pedestrian crosswalk; that he walked over to the right-hand door of the cab of the truck, opened the door about six or eight inches, and yelled 'You lost a box'; that the driver looked right at him, and, with his right hand, motioned him him to go away; that while he still had his hand on the dor handle the truck driver started up very fast; that he was knocked off balance and gripped the door handle to keep from being thrown down; that he was able to hold onto the door handle for ten or fifteen feet, and during all that time yelled at the driver to stop; that he finally lost his grip and fell under the right rear wheel. He suffered very severe injuries.
The truck driver of defendant testified that he was delivering boxes of fish for his employer at the time of the accident; that the cardboard boxes in which the fish were packed were about eight or nine in number, were about four feet long and two feet wide, and were lying on the bed of the truck; that the truck bed had no sides, but boxes were kept from slipping by steel strips in the bed of the truck; that these boxes weighed about 175 to 200 pounds; that as he was driving south on Steiner Street he did not see any box in the roadway; that as he came to the intersection of Steiner and Golden Gate he stopped; that a taxicab was approaching the intersection on Golden Gate from his right; that the taxicab stopped and the driver motioned him to go ahead; that he went through slowly while in low gear; that he heard people yelling, then 'The righthand door of my cab flung open, and almost immediately after the door flung open I run over something'; that he thought the tarpaulin over the fish had caught in the door; that he stopped and saw Fernandez lying in the street. He further testified that as he approached the intersection, and when he stopped there, he did not see Fernandez at all; that the cab door was not opened while he was stopped; that the door was not opened until he was out in the intersection, and occurred almost simultaneously with the bump that indicated he had run over something; that the right window of his cab was closed; that he did not hear Fernandez calling to him and heard no yelling until he had run over Fernandez. He admitted that, after the accident, he saw a carton lying in the street about where Fernandez said it was, but claimed that it was a small box about a foot wide, long and deep; that the box he saw had not fallen from his truck, and was much smaller than any box he had ever carried on his truck.
The taxicab driver testified as to approaching the intersection and stopping to let the truck through, and stated that just as the truck started up he saw Fernandez grabbing the door handle on the right of the cab of the truck; that, according to his best recollection, the truck driver was looking straight ahead; that he did not hear Fernandez yell; that as the truck started up the door appeared shut, but he was not positive as to this; that Fernandez was running beside the truck, apparently trying to better his grip on the door handle, when he slipped and fell.
In its instructions to the jury the trial judge gave three instructions on the law of trespass, all proposed by the defendant. They were:
'I instruct you that the plaintiff Ramon Fernandez, at the time he took hold of the defendant's truck, if he did so, was a trespasser.'
'The only duty a motorist owes to a trespasser on his car is not to injure him wilfully.'
'The owner of an automobile owes no duty to a trespasser thereon until he actually knows of the presence of such trespasser.'
A little over an hour after the jury had retired it returned to the court and asked for further instructions on three matters, one of which was a request for 'another instruction as to the trespassing.' The court repeated, almost verbatim, the three instructions above quoted. In less than fifteen minutes the jury returned with a verdict for defendant. Thereafter, on motion for a new trial, the motion was granted on the sole ground that the above three instructions did not fully state the law of trespass.
Defendant as appellant, argues that the court abused its discretion in granting the motion for a new trial. In this connection appellant contends that under the first instruction the jury was not to consider it unless it first fund that respondent took hold of the truck. It is contended that there is a conflict on this issue, and, because of the general verdict, it must be conclusively presumed that the jury found that respondent did not get hold of the truck. Therefore, so it is contended, instructions 2 and 3 above quoted, even if erroneous, could not have misled the jury. There is no conflict at all in the evidence on the issue of whether respondent got hold of the door handle. Respondent so testified. The truck driver admitted that the door flew open. The cab driver testified that he 'noticed somebody grabbing the door of the truck'; that he saw 'a man handling or grabbing the door knob'; that Fernandez 'was trying to hold tight to the door so he wouldn't lose his grip'; and that it appeared as if Fernandez 'was afraid he'd lose his grip.' Whatever ambiguities may exist in his testimony were cleared up on cross-examination, where, in response to the question: 'He had a good grip on it but was trying to get a better grip on it?', he replied 'That's the picture I got of it.' There is, therefore, no conflict at all in the evidence on the issue of whether respondent got hold of the door handle. This being so, under instruction number 1 above, the jury was directed to find that respondent was a trespasser. Even if instruction number 1 were correct (and under the facts the respondent might well have been found to be at least a licensee), we are directly presented with the question as to whether the trial court correctly determined that the giving of instructions 2 and 3 above quoted was prejudicially erroneous. By these two instructions the jury was told that the truck driver owed no duty at all to respondent trespasser unless he knew of the respondent's presence, and that the only duty then...
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