Garner v. Pacific Elec. Ry. Co.

• Decision Date: 24 April 1962
• Docket Number: No. 25352,25352
• Citation: 202 Cal.App.2d 720,21 Cal.Rptr. 352,99 A.L.R.2d 165
• Court: California Court of Appeals Court of Appeals
• Parties: , 99 A.L.R.2d 165 Melvin R. GARNER, Plaintiff and Appellant, v. PACIFIC ELECTRIC RAILWAY COMPANY, Southern Pacific Company, Defendants and Respondents.

Page 352

21 Cal.Rptr. 352

202 Cal.App.2d 720, 99 A.L.R.2d 165

Melvin R. GARNER, Plaintiff and Appellant, v. PACIFIC ELECTRIC RAILWAY COMPANY, Southern Pacific Company, Defendants and Respondents.

No. 25352.

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

April 24, 1962.

Rehearing Denied May 23, 1962.

Hearing Denied June 20, 1962.

Betts, Ely & Loomis by Albert H. Ebright, Los Angeles, for appellant.

E. D. Yeomans, William E. Still, John H. Gordon and John J. Corrigan by William E. Still, Los Angeles, for respondents.

FOURT, Justice.

This is an appeal from a judgment in favor of defendants in an action involving personal injuries received by plaintiff while in the course of using one of defendants' railroad cars.

Plaintiff, a 43 year old man, was employed by Kaiser Gypsum Company as a loader of cars at Kaiser's gypsum plant in Long Beach. Defendants supplied railroad cars to Kaiser for Kaiser's operations in the hauling and delivering of its gypsum products. Although the defendants are two separate companies, for the purposes of this opinion there seems to be no reason under the circumstances and the evidence which was submitted why they should not be considered as one, and they hereinafter will be referred to as the defendant.

On February 18, 1958, between 11:30 a. m. and noontime the plaintiff, who weighed approximately 140 pounds, walked onto a flatcar No. SP 506032, which belonged to the defendant, carrying a piece of dunnage gypsum board weighing about 65 pounds, which board was to be used in preparing the car in part to receive a load of Kaiser's gypsum boards. The car had been spotted at the loading dock of Kaiser's establishment by defendant. The car was built in 1948 and is what is ordinarily termed a flatcar with sills in the middle portion thereof running from end to end with cross-members. The sills and the corss-members were decked or covered with boards about 5 1/4 inches wide by 2 1/2 to 2 3/8 inches thick by about 10 feet in length. The decking was about 4 feet 6 to 8 inches above the ground.

The car in question came into the yard of the railroad February 17, 1958, at about 5 p. m. A yard check of the car with other cars was made by the defendant to ascertain certain things, among them whether the car was fit for the purposes for which it was to be used. The inspectors worked in shifts. The inspector who apparently inspected the car here involved came to work at 3 p. m. on February 17th and worked until 11 p. m. of that day. His duties required him to inspect all cars in the railroad yard. He carried a memorandum book when working and if a car was found to be defective he would place a 'Bad Order' card on the car and note the circumstances in his book. In cases of 'Bad Orders' the yardmaster was notified and the car would then be removed to the repair shop. The inspector worked alone and after dark he used a lantern to assist him in his work. He did not go underneath or on top of the cars in the course of his inspection. He would start at one end of the car and check the couplings, levers, brakes, wheels, packing dates, grab irons and would bleed the air, and as he walked along doing these things would glance '* * * at the floor all the time.' He never went up onto the floors of the cars to inspect them for weak spots or otherwise. When a car which was used by Kaiser came in with broken pieces of wallboard on the floor thereof the inspector never went upon the car to remove the debris when he made his inspection. The inspector had no special instructions except to see that the cars were safe for loading. He knew, however, that people walked upon the surface of the cars and that sometimes forkloaders weighing from 2 to 3 tons carrying weights up to 3 tons would use the surface of the car at the Kaiser plant in the loading process and that in any event a car should be safe enough for a man to walk upon the surface of the floor of the car without its collapsing. The inspector stated that he did not know what a board in the process of decay looked like, and in effect he further stated that had he seen a piece of wood which looked like one of the exhibits in evidence in this case (plaintiff's exhibit No. 6) he would not have gone onto the car and taken a closer look. The exhibit referred to is now before this court and suffice it to say the pieces of board here are so rotten or deteriorated as to be capable of being crumbled with a very small pressure from a fingernail. The plaintiff walked onto the floor of the car as heretofore indicated carrying a piece of dunnage toward the opposite end of the car. He could see clearly what was in front of him and as he walked along he kept looking to see if it was safe to continue; the light was good, the surface of the boards looked all right and there appeared to be nothing visibly wrong with the floor as he proceeded. When the plaintiff was approaching the place where the dunnage was to be affixed his right foot and leg suddenly went through the deck flooring up to his groin and his left leg doubled underneath him. Fellow employees assisted in extracting the plaintiff from the hole thus made. Some of the pieces of the boards through which the plaintiff's leg went are as heretofore indicated by the exhibit above referred to, namely: rotten and deteriorated. The hole which was made was from 12 to 20 inches long and from 6 to 12 inches wide.

The action came on to be heard on August 24, 1960, and was tried upon the theory that the defendant owed to plaintiff a duty to make a reasonable inspection of the car to determine whether it was safe to load and either to repair or to warn of any defect disclosed by the inspection. The plaintiff asserts that the defendant breached its duty in that (1) no inspection of the car was made prior to its delivery to plaintiff's employer's plant, (2) if an inspection was made then it was cursory and superficial and did not include the floor of the car and was not geared to the conditions and circumstances which then existed, (3) the car was defective and unsafe to load for the reason that the floor contained rotten and decayed boards, (4) the rotten boards were discoverable by a reasonable inspection, (5) the defendant should have discovered the rotten boards by means of an inspection which was required, (6) the defendant failed to repair the floor or to give any warning of its dangerous condition.

The jury was instructed on September 6, 1960, and on September 7, 1960, the judge reread six of the instructions previously given. The instructions in question are set forth in footnote 1. The judge refused to give certain instructions offered by the defendant. ²

The facts in the Baltimore & Ohio Railroad Company v. Hughes, 6 Cir., 278 F.2d 324; Jusko v. Youngston & Northern R. Co., 89 Ohio App. 496, 102 N.E.2d 899, 900; and Erie R. Co. v. Murphy, 6 Cir., 108 F.2d 817, cases cited by defendant in support of one of its instructions, are not comparable to the facts in this case. In the Erie R. Co. case, supra, the car in question was a sealed boxcar of another railroad. In the Jusko case, supra, the court held in effect that there was no duty owed to the person who was in a comparable position to the plaintiff in this case to inspect the coupling pin or coupler which was not to be used by the plaintiff in loading or unloading the car. In the Baltimore & Ohio case, supra, a freight car door was involved and the court held in effect that the evidence disclosed no defects of the door were ever revealed by any inspection.

A verdict was returned for the defendant and this appeal followed.

Appellant contends in effect that a reading of plaintiff's instruction No. 3 as given and plaintiff's No. 5 (refused) correctly set forth the duty owed by the defendant to the plaintiff and that by refusing to give plaintiff's No. 5 and in giving the requested instructions the court emasculated the effect of plaintiff's instruction No. 3, mislead the jury and incorrectly instructed the jury under the circumstances.

Appellant states that it would seem clear that the instructions must be read with reference to each other and if that be done then the jury was in effect instructed that 'A railroad company owes a duty to a shippers' employees to see that its cars are in reasonably safe condition for loading by means of an inspection sufficient to disclose any patent defects; however, a railroad is not liable for injuries from defects which it has no opportunity to discover, which no reasonably careful inspection would have uncovered, or from defects apparent to an ordinarily intelligent person.' Appellant argues among other things that the defendant's duty was not limited to an inspection sufficient to disclose patent defects, that defendant's third instruction oversimplifies the duty owed to the plaintiff; that a combined reading of the instructions results in an instruction that the defendant's duty was limited and confined to defects which were open, evident and discoverable by mere observation and that the significant element underlying defendant's duty is whether the particular defect is discoverable by means of a reasonable inspection in the light of the conditions and circumstances existing and not whether it is patent, i. e. open and evident, or latent, i. e. hidden and not observable. Or in short it is contended that the jury was led to believe by the instructions that the defendant had adequately discharged the duty of care by a casual and visual inspection of the car in question.

The jury was instructed at 2 p. m. September 6, 1960, and apparently considered the matter until approximately 4:30 or so. At 9:30 a. m. on September 7, 1960, the jury was sent out to deliberate further and at about 10:20 a. m. the jury, which was obviously confused, called upon the court to reread the instructions on negligence, which the court did, and then the foreman of the jury, upon being asked whether there was anything...