Guillory v. American President Lines, Limited

• Decision Date: 20 October 1964
• Citation: 40 Cal.Rptr. 796,230 Cal. App. 2d 296
• Court: California Court of Appeals
• Parties: John J. GUILLORY, Plaintiff and Appellant, v. AMERICAN PRESIDENT LINES, LTD., a corporation, Defendant and Respondent. Civ. 21579.

Page 796

40 Cal.Rptr. 796

230 Cal.App.2d 296

John J. GUILLORY, Plaintiff and Appellant, v.AMERICAN PRESIDENT LINES, LTD., a corporation, Defendant and Respondent.

Civ. 21579.

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

Oct. 20, 1964.

Hearing Denied Dec. 16, 1964.

McMurray & Tepper, Lloyd E. McMurray, San Francisco, for appellant.

Willard G. Gilson, Peter N. Swan, Lillick, Geary, Wheat, Adams & Charles, San Francisco, for respondent.

BRAY, Justice.

Plaintiff appeals from judgment of nonsuit in favor of defendant American President Lines, Ltd., in an action for damages for personal injuries allegedly resulting from negligence of defendant's agents.

QUESTIONS PRESENTED.

1.Was there any evidence of defendant's negligence?

2.Did the doctrine of res ipsa loquitur apply?

STATEMENT OF FACTS.

Plaintiff is a longshoreman in San Francisco.At the time of the accident he was employed by the California Stevedore and Ballast Company and had been assigned to special work as a 'linesman' handling the mooring lines of ships as they arrived and departed.This was the usual kind of work assigned to men who were disabled from undertaking the normal work of loading and unloading ships.Plaintiff had a previous back injury which caused this disability, leaving him with what his doctor characterized 'as a very vulnerable back.'

On the evening of February 8, 1960 the SS President Taylor, owned by defendant American President Lines, Ltd., was approaching the United States Army Reefer Dock, located on the Oakland estuary, for the purpose of picking up cargo.The ship was approaching with its port or left side nearest the dock.It was a dark rainy night and there was a wind blowing off the dock against the side of the vessel.To assist in mooring the vessel, plaintiff and five other linesmen had been employed by California Stevedore and Ballast Company.These six line handlers were to assist the vessel by pulling its heavy mooring hawsers ashore onto one portion of the dock and securing them to designated cleats or 'bollards' on another portion of the dock.

Plaintiff was working on the dock near the stern of the vessel with two other line handlers, Ruben Nelson and Robert Rhodes.The customary procedure in tying a ship up to the dock was followed.First a line was run from the bow of the ship to a cleat or 'bollard,' then a light line called a 'heaving line' was thrown to the dock from the ship.Attached to this line was a heavy 1 1/2 inch wire and hemp line called a 'spring line.'This line was to be pulled onto the dock and its loop or eye to be placed over a bollard.Then by means of a winch on the ship, the stern of the ship would be brought against the dock.At the time the head of the spring line was pulled onto the dock, the ship was angled out from the dock, bow in and stern away.

On the ship this spring line was coiled between two capstans on the ship's stern.It was the duty of a seaman, John Orser, employed by defendant, to play out this line through an opening on the capstans called a 'chock.'A half turn of the line is taken around a 'bitt' to keep the line from running out too fast.Otherwise the weight of the line between the ship and the dock would cause the line to play out too fast and it would fall into the water.When the heaving line was caught on the dock, Orser put the eye of the spring line through the chock and attached it to the heaving line.It was then the duty of the long-shoremen to pull the spring line ashore.Orser waited until these men had pulled the line tight and then he started playing the slack out through the chock as the men on shore pulled the line.It was Orser's duty to use his hands 'as a brake' to control the slack.Orser could not see the men on the dock.A ship's mate standing by the rail could and would signal Orser how much line to feed out.It was the duty of the longshoremen as well as the man on the ship to keep the spring line out of the water.The stern 'chock' from which the spring line came was about 30 to 35 feet from the dock.After pulling some 18 to 30 feet of spring line onto the dock, Nelson removed the heaving line from the eye of the spring line.Thereupon, he held the eye of the line.Rhodes, about six feet behind him, held onto the line with both hands.About six feet behind Rhodes plaintiff likewise held the line with both hands.The three men then started 'running' with the line, dragging it toward a mooring cleat some 75 or 100 feet away.Plaintiff testified that he was approximately three or four feet from the edge of the dock inside the 'stringer piece.'He was facing the cleat at an angle toward the ship.He was holding the line about belt level with his left hand on the bottom and his right hand on top.

As the men were moving toward the cleat, the 'spring [line] stopped with a sudden jerk.'Immediately after this sudden jerk or stoppage, the line again became slack.This short jerk jerked plaintiff'back, twisted from the left to the right side,' and caused a sudden pain in plaintiff's already injured back.He immediately dropped to one knee in a sort of crouch and was no longer able to continue work.It is this injury of which he complains.Plaintiff testified that it was the pain in his back, not the jerk, which caused him to drop the line and to go to his knees.Nelson described the incident as a 'sudden stop * * * of the line' which '[p]retty near threw us all over.'Both plaintiff and Nelson admitted that they were not looking backward and did not know what caused this sudden stopping of the spring line.

The line sags as it runs from the spring chock on the deck of the vessel to the dock, it being too heavy for the men to pull it out straight.There is, thus, an unavoidable belly of about six feet in the line between the spring chock and the 'stringer piece.'¹.Nelson testified that the line did not catch in the water.Plaintiff testified that it was his duty to see that the line did not catch on any of the cleats or other obstructions as it passed along the stringer, and that the line did not catch on any such obstruction.The linesmen were all experienced and none of them stopped pulling before the accident nor could tell what caused the jerking of the line.Neither plaintiff, Nelson nor Rhodes slipped or tripped, and each was pulling his share of the load.

1.NO EVIDENCE OF DEFENDANT'S NEGLIGENCE.

The rules applicable to the granting of a motion for nonsuit are well settled in California.They are well epitomized in the following cases.'A trial court must deny a motion for a nonsuit at the close of plaintiff's case 'if there is * * * any substantial evidence, which, with the aid of all legitimate inferences favorable to the plaintiff, tends to establish the averments of the complaint, or, in other words, where the plaintiff's evidence is sufficient to support a judgment on the verdict.It should deny a nonsuit even where there is a conflict in the evidence and some evidence tends to sustain the plaintiff's case, or when the evidence of the plaintiff is such that different conclusions can reasonably be drawn therefrom.If there is any doubt, it is the duty of the court to let the case go to the jury.'(9 Cal.Jur. 558-559.)And as to our duty, 'The uniform rule which an appellate court should follow in disposing of an appeal from a judgment of nonsuit is, that the court must view the evidence in the light most favorable to appellant, must disregard all inconsistencies and draw only those inferences from the evidence which can reasonably be drawn which are favorable to appellant.[Citations.]'' (Golceff v. Sugarman(1950)36 Cal.2d 152, 152-153, 222 P.2d 665, 666.)(See alsoJones v. Hotchkiss(1956)147 Cal.App.2d 197, 201-202, 204-205, 305 P.2d 129, concurring opinion;Seneris v. Haas(1955)45 Cal.2d 811, 821, 291 P.2d 915, 53 A.L.R.2d 124.

A motion for nonsuit concedes the bulk of the facts proved.The court has no power to weigh the evidence.In passing on a judgment of nonsuit, the appellate court must view the evidence as though judgment had gone in favor of the appellant and order a reversal if such judgment could be sustained.(Rader v. Tumin(1951)36 Cal.2d 654, 656, 226 P.2d 574.)However, as the court in Ulwelling v. Crown Coach Corp.(1962)206 Cal.App.2d 96, noted at pp. 104-105, 23 Cal.Rptr. 631, at pp. 635-636: '[B]efore a judgment of nonsuit can be disturbed, there must be some substance to plaintiff's evidence upon which reasonable minds could differ; proof that raises mere speculation, suspicion, surmise, guess or conjecture is not enough to sustain his burden.[Citations.]'* * * as pointed out in Reese v. Smith, 9 Cal.2d 324, at page 328, 70 P.2d 933, at page 935: 'If the existence of an essential fact upon which a party relies is left in doubt or uncertainty, the party upon whom the burden rests to establish that fact should suffer, and not his adversary.[citation.]A judgment cannot be based on guess or conjectures.[citation]'* * * Substantial evidence is required to establish each essential affirmative allegation--a scintilla of evidence is not sufficient for that purpose.[Citation.]'* * * Thus, the burden was upon plaintiffs to establish that defendants had some duty to them and breached it, and that such breach was the proximate cause of the accident; if there is no evidence of substance tending to prove the controverted facts necessary to establish the plaintiffs' case, the motions for nonsuit were in order.'(SeeGoggin v. Reliance Ins. Co.(1962)200 Cal.App.2d 361, 364, 19 Cal.Rptr. 446;Cassell v. McGuire & Hester(1960)187 Cal.App.2d 579, 590, 10 Cal.Rptr. 33;Rufo v. N.B.C. Nat. Broadcasting Co.(1959)166 Cal.App.2d 714, 720, 334 P.2d 16;Bravo v. Sharkey(1950)97 Cal.App.2d 883, 218 P.2d 785;Alves v. Lopez(1958)159 Cal.App.2d 705, 707, 324 P.2d 652.

In Cassell, supra, in reversing a judgment of nonsuit, the court pointed out, 187 Cal.App.2d at page 589, 10...