Hope v. Arrowhead & Puritas Waters, Inc.

• Decision Date: 05 October 1959
• Citation: 174 Cal.App.2d 222,344 P.2d 428
• Parties: Thomas HOPE, Plaintiff and Appellant, v. ARROWHEAD AND PURITAS WATERS, INC., a California Corporation, Defendant and Respondent. Civ. 23328.
• Court: California Court of Appeals Court of Appeals

Page 428

344 P.2d 428

174 Cal.App.2d 222

Thomas HOPE, Plaintiff and Appellant, v. ARROWHEAD AND PURITAS WATERS, INC., a California Corporation, Defendant and Respondent.

Civ. 23328.

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

Oct. 5, 1959.

Cowan & Peterson, redondo Beach, for appellant.

Chase, Rotchford, Downen & Drukker, Alan W. Ford, Los Angeles, for respondent.

LILLIE, Justice.

Plaintiff claims personal injuries as a result of having been struck from the rear by one of defendant's fork lift trucks while standing in the loading yard of the Arrowhead & Puritas Waters, Inc. Pacific Indemnity Company, carrier under a contract of Workmen's Compensation insurance, filed a complaint in intervention. A jury trial resulted in a verdict in favor of defendant. Plaintiff Hope appeals from the judgment and order denying him a new trial.

Bound by the rule that a reviewing court must look to the evidence favorable to the finding or verdict, and to inferences reasonably deducible therefrom, when ascertaining the sufficiency of the evidence (Guerra v. Balestrieri, 127 Cal.App.2d 511, 274 P.2d 443), we briefly summarize the pertinent facts leading up to the impact.

Defendant, a water bottling plant, maintains a loading yard covering approximately one block in the middle of which stands a small office. In the area behind the building are stacked wooden crates of bottles and a shed to which small fork lift trucks drive back and forth moving filled and unfilled water bottles from place to place in the yard. Beneath the overhang of the shed is the tilting area in which conveyor belts bring filled bottles out of the filling room and return the empty ones for sterilization. As five filled bottles approach the end of the belt they are picked up by a hand truck and wheeled onto a wood pallet. Two fork lift trucks on one side of the tilting area pick up the pallets and, on the other, two trucks return empty bottles. The loading and unloading process is one continuous operation and, along the length of the shed, four fork lift trucks constantly drive in and out of the openings and runways. These vehicles are gas driven and have two large tines in the front which pick up the pallets stacked with cartons of bottles 21 inches high. Approximately 4 1/2 feet wide, the trucks carry in front, approximately 4 to 6 inches off the ground, a full load--three bottles wide, two deep and five high--measuring 3 1/2 feet across. The fully loaded truck weighs approximately 1950 pounds. When the truck is empty the operator, seated on the left side, can see directly ahead; when it carries a full load he cannot see immediately in front but can see ahead some distance away. To load at the tilting area, the operator drives into one of the driveways or runways, swings around to the left, runs the tines between top and bottom of the pallet, backs away, and then moves forward into the driveway and out of the tilting area, transporting empty and full bottles from place to place in the yard in a continuous loading and unloading operation. One fork lift truck every minute emerges from, or goes into, the driveway in the tilting area. With two trucks picking up full loads on one side and two on the other returning empty bottles, there are four such trucks in operation in that area all the time. It takes two minutes for a truck to complete the cycle (drive into the runway, pick up the pallet, back up and drive into the yard to deposit its load). The yard is noisy from the operation of belts, fork lifts and engines. On either side of the gate leading into defendant's premises are two signs: 'Stop. Loading area. Co. vehicles only.'

At approximately 9 a. m. on January 25, 1956, plaintiff, 49 years of age and an experienced truck driver, drove a truck onto defendant's premises to deliver salt for his employer. He parked on the right side of the driveway next to the yard office, near one of defendant's transport trucks. Having never been on the premises before, he went into the office to inquire where to dump the salt and was told to wait until a place was cleared for it. It was raining heavily. He returned to his truck and waited in the cab approximately one hour. The truck faced the tilting area where the loading and unloading operations of the fork lift trucks were taking place. He observed the activity around him and saw fork lift trucks moving crates from the area he was waiting for them to clear, and carrying loads of filled bottles to the transport truck near him. He was not otherwise engaged and had a clear view of what went on before him. Since 8:05 a. m. five fully loaded fork lift trucks had been moving about plaintiff's truck in a continuous operation, four working in the tilting area cutting across directly in front of him going to and from the area, and one clearing the place for the salt and loading the transport truck. After an hour's wait, plaintiff backed into the cleared space, unloaded the salt, got out of his truck and went into the yard office to have his bill signed. There being no one in the office, he walked into the yard and stopped in one of the truck runways with his back to the loading activity, looking away from the tilting area. While standing there, a loaded fork lift truck, going about one mile an hour, approached him from the rear and hit him in the ankles. He fell forward on his hands and knees, but immediately got up and limped away. Plaintiff did not see the truck before he was struck.

Experienced with fork lift trucks since 1949, the operator had been driving in and out of the tilting area that day since 8:05 a. m. and in a loaded truck had cut across back and forth in front of the truck in which the plaintiff had been seated. A few minutes before the impact, as he drove into the tilting area for another load, he had seen plaintiff in the yard office through the window. He swung to the left around to the pallet, picked it up, backed around, going 'very slow,' a mile or a mile and a half an hour, put the truck in gear and about 15 feet from the edge of the overhang started forward approximately one mile an hour headed straight across into the storage yard to set down his load. The load he carried in front of him, approximately 5, 6 or 7 inches off the ground, was the normal load of five bottles high, three wide and two deep. He testified: 'First when I backed out I looked backwards to see if there was a lift truck behind me. Naturally when a person backs up, you have to look back. Then as I straightened out I seen no one.' Although it was raining and fairly dark two strings of artificial lights were burning under the overhang. The operator was on the watch for other fork lift trucks. The area was empty but, as he straightened out, his vision forward was obscured by the load. He could see 'to some extent' toward the left but could not see 'very good' off to the front right. When driving out he could see a 'considerable distance' beyond him but not immediately in front, the top of the load being higher than the level of his eyes. He estimated a man almost six feet tall would have to be five or six feet in front of the loaded truck for him to see any part of his head. Starting forward about one mile an hour '(S)omebody yelled. They said 'Whoa'.' When he heard this he immediately put his foot on the brake causing the fork lift to automatically go forward and downward. After he stopped, he got off the truck and saw plaintiff walking away. He did not see plaintiff either immediately before or at the time of the impact.

Appellant contends first that there was not sufficient evidence of contributory negligence to sustain the verdict; and assigns as error three rulings made by the trial court to objections to the use of certain doctors' reports in the cross examination of expert medical witnesses.

The judgment having been based on a general verdict, we are unable to speculate on what particular ground the jury may have found against plaintiff, nor are we required to do so. A general verdict imports findings in favor of the prevailing party on all material issues (Moss v. Coca Cola Bottling Co. 103 Cal.App.2d 380, 229 P.2d 802; Shields v. Oxnard Harbor Dist., 46 Cal.App.2d 477, 116 P.2d 121); therefore we may assume the jury found that defendant exercised due care and it was not negligent; or, if defendant was negligent, its negligence was not a proximate cause of the alleged injury; or, if defendant's negligence was a proximate cause of the accident, plaintiff's own negligence contributed as a proximate cause thereof. Had the jury found against plaintiff on any one of these issues, and if there is substantial evidence in the record before us to support such an implied finding, the judgment must be sustained if the record is otherwise free from error. As the trier of fact which weighed the evidence, determined the credibility of witnesses and resolved the factual conflicts, the jury no doubt was influenced by the various omissions and evasions manifest in plaintiff's testimony, by impeaching evidence concerning a series of other accidents and injuries suffered by plaintiff, by conflicting testimony relative to the nature, extent and seriousness of plaintiff's condition, and by certain contradictory claims concerning his ability to work after a second accident.

Appellant has directed our attention solely to the matter of a purported implied finding of the jury relating to his contributory negligence. Our review of the record admits no merit to his claim that the evidence 'is insufficient from which a reasonable person could infer any (contributory) negligence,' citing Gray v. Brinkerhoff, 41 Cal.2d 180, 258 P.2d 834. This case is of little value to him for therein the violation of a statute, and thus negligence, as a matter of law, was the controlling factor; and the judgment for defendant was reversed on the theory that as a matter of law there was no contributory negligence on the part of plain...