Glusac v. Atchison, Topeka & Santa Fe Ry. Co.

• Decision Date: 14 July 1966
• Citation: 52 Cal.Rptr. 417
• Court: California Court of Appeals Court of Appeals
• Parties: Nick GLUSAC, Plaintiff and Appellant, v. ATCHISON, TOPEKA & SANTA FE RAILWAY CO., a Corporation, and Pacific Electric Railway Company, a Corporation, Defendants and Respondents. Civ. 29249.

Page 417

52 Cal.Rptr. 417

Nick GLUSAC, Plaintiff and Appellant, v. ATCHISON, TOPEKA & SANTA FE RAILWAY CO., a Corporation, and Pacific Electric Railway Company, a Corporation, Defendants and Respondents.

Civ. 29249.

District Court of Appeal, Second District, Division 2, California.

July 14, 1966.

Hearing Granted Sept. 7, 1966.

Magana, Olney, Levy, Cathcart & Gelfand, and Ellis J. Horvitz, Los Angeles, for appellant.

John J. Balluff, Richard K. Knowlton, Merrill Albert, Los Angeles, for respondents.

ROTH, Presiding Justice.

Appellant Nick Glusac, plaintiff below, was injured while unloading potash from a railroad car onto a ship. The freight car was owned by respondent Atchison, Topeka & Santa Fe Railway and was delivered and inspected by respondent Pacific Electric Railway Company. (Respondents are collectively called the "Railroad").

The case was tried to a jury. At the conclusion of appellant's case in chief, respondents' motion for nonsuit was granted and judgment was entered thereon. This appeal is from the judgment of dismissal.

Appellant was a longshoreman employed by a stevedoring company to unload the railroad cars from a pier onto a ship. The freight cars were separated from the train and pulled down the pier by a tractor to and over a pit. The longshoremen would then open the several sliding hopper doors beneath the car, allowing the potash to pour out onto a conveyor belt located in the pit. The belt carried the potash to the ship.

The hopper doors under each freight car were opened by a ratchet mechanism which, when operated, released and slid the doors on shafts running in a lengthwise direction under the cars. The longshoremen, under ordinary conditions, unloaded approximately four cars per hour. On an average of one out of 30 cars, the men would encounter a stuck door. Doors became stuck either because the potash had caked hard, or because of poor maintenance of the moving door portion of the car.

Before the hopper cars were taken down the pier to the unloading pit, they were inspected in the railroad yard in the harbor area. The inspection focused primarily on safety appliances, wheels, ladders, and other items of interest to railroad workers. Very little attention was paid to the hopper doors. Normal and routine work procedure required the longshoremen to refer and report any defect or malfunction in the railroad cars which impeded unloading to the railroad for correction. In such event work procedure required the longshoremen to remove the defective car from the pit area onto another track and call for a railroad crew to repair the car causing difficulty. In practice, however, the longshoremen were expected to maintain the flow of unloaded cars; they found it more expedient to attempt to repair the cars themselves while they were over the pits. ¹

Thus, as a practical matter, when a longshoreman encountered a stuck door, he called other workers to help him open it. The men thus assembled would first apply manual pressure to a bar placed in the ratchet for leverage. When that failed, they would strike the area of the hopper door with a sledge hammer in order to break it loose. As a last resort, a long bar would be placed in the ratchet and a cable would be attached to the bar at one end and There is some indication in the evidence that the railroad knew of the methods used by the longshoremen to open the hopper doors. Roy Hegglin, car inspector for respondent Pacific Electric Railway, testified in the following manner:

to a jitney or tractor at the other. The jitney would then mechanically turn the ratchet by pulling the cable.

"Q * * * Well, Mr. Hegglin, you personally were aware of the fact that this is a common situation, that these doors stick, isn't that right, on potash cars; right?

"A. Yeah, on occasions they stick; yes.

"Q And the use of your equipment has occurred in only about eight or ten times, or the requirement for the use of that equipment, in ten years in your experience, is that right?

"A Oh, as near as I can remember.

" * * *

"Q And in the meantime you have watched the men opening these doors?

"A I have seen them open them, yeah.

"Q And the method that I have described is the one that is usually utilized, isn't that right?

"A Yeah, they--

" * * *

"Q Have you seen them take a bar and put it in that device and try to pull it by hand?

"A Yeah, I have seen them do that.

"Q Have you seen them do that with the use of a jitney and a cable?

" * * *

"A I have never seen them pull on a door [bar] with a bar--I mean with a jitney.

"Q And you have never known of that process?

"A I have heard of it, but I have never seen it."

The evidence further shows that the longshoremen were never given specific instructions by their the railroad or the stevedoring company concerning what methods, if any, were to be utilized in opening malfunctioning freight hopper car doors. The tools used to open the doors were supplied by the stevedoring company.

On December 8, 1960, the day of the accident here involved, one of the longshoremen had encountered a stuck door. Appellant and several other workers joined in attempting to open it. After manual methods had failed, they inserted a steel bar in the ratchet for use with a cable and jitney. A steel cable was spliced through an eye in the bar. The cable was attached to a jitney which began pulling on the bar. The door was so firmly stuck, however, that the bar broke without turning the ratchet mechanism. The longshoremen then obtained a larger bar for the same purpose. This particular bar had no eye or notch in which a cable could be attached. The men employed the usual procedure in such situations of slipping the end of a spiced cable over the bar, placing the bar in the ratchet at an angle, and holding the cable until the jitney had pulled the cable taut. Appellant held the cable as the jitney began pulling. The cable slipped off the end of the bar, causing the bar to spring backwards out of the ratchet. Appellant was hit in the face and hand and sustained the injuries complained of.

At the conclusion of appellant's case, the trial court granted a nonsuit on the ground that appellant had failed to prove the element of proximate cause. The proximate cause of the injury, said the court, was "the last means of force that was used by the stevedoring company", and it was "not foreseeable to the railroad that that last means of force would have been employed * * *."

In reviewing the propriety of a nonsuit, our function is to determine whether there is any substantial evidence which would support a judgment for the plaintiff disregarding all conflicts and indulging in all reasonable inferences in the plaintiff's favor. (Carey v. City of Oakland, 44 Cal.App.2d 503, 509, 112 P.2d 714; Gordon H. Ball, Inc. v. Parreira, 214 Cal.App.2d 697, 701-702, 29 Cal.Rptr. 679; McCall v. Otis Appellant contends that there is evidence from which it may be found that the railroad had a duty to provide the longshoremen with freight cars which were safe to unload; that the railroad breached this duty; and that this negligent breach caused foreseeable harm to appellant.

Elevator Company, 219 Cal.App.2d 22, 24-25, 33 Cal.Rptr. 44.)

We think the nonsuit was correct, but we do not agree that the accident was not foreseeable. The evidence shows knowledge by Railroad of the methods used by the longshoremen to loosen stuck doors. With this positive knowledge it is our opinion that the accident here was foreseeable. We rest our affirmance on the ground that there is no duty to tell another that which is obviously known.

"[O]ne is not required to anticipate against dangers which it is not his duty to avoid." (Tucker v. Lombardo, 47 Cal.2d 457, 464-465, 303 P.2d 1041, 1046, emphasis added.)

It is settled that a judgment of nonsuit will be upheld on appeal for reasons other than those specified by the trial court only "if it is clear that the defect is one which could not have been remedied had it been called to the attention of plaintiff by the motion." (Lawless v. Calaway, 24 Cal.2d 81, 94, 147 P.2d 604, 610; Markwell v. Sykes, 173 Cal.App.2d 642, 651, 343 P.2d 769.) The record shows that the defects upon which we rely meet that test.

The duty of Railroad toward appellant in the case at bench is well stated in Garner v. Pacific Electric Railway Company, 202 Cal.App.2d 720, at pp. 731-732, 21 Cal.Rptr. 352, 360, 99 A.L.R.2d 165:

"A railroad has the duty to use ordinary care to deliver cars which are reasonably safe for loading and unloading by the employees of the concerns to whom the cars are delivered for use. It follows that there is a duty to make reasonable inspections of the cars to the end that defects therein may be ascertained and to warn of or to repair the defects thus found." (Emphasis added.)

The court in Garner points out that the primary duty of the railroad is one of inspection, "and that duty is not in anywise delimited by the kind of defect which may or may not exist." (Id. at p. 731, 21 Cal.Rptr. at p. 359.) The duty to inspect is, of course, meaningless, unless the results of that inspection, where relevant, are communicated to those to whom the duty is owed. Thus the court stated: "[t]here is what might be termed a secondary duty, namely either to warn of or to remedy certain defects which may be uncovered by the reasonable inspection." (Id. at p. 731, 21 Cal.Rptr. at p. 359.)

The duty to warn or repair is conditioned on the type of defect which was or ought to have been uncovered by the inspection. The Garner decision continues the foregoing discussion, stating: "If the defect found be an open, visible, obvious one--a patent defect--the duty to warn or to repair does not come into play because the invitee can be expected to ascertain for himself by the use of his own common sense that there is a defect."

In the case at bench, appellant was fully aware of the defective condition of the hopper door. Indeed, his injury was...