Howell v. Ducommon Metals & Supply Co.
| Decision Date | 14 December 1950 |
| Citation | 101 Cal.App.2d 163,225 P.2d 293 |
| Court | California Court of Appeals Court of Appeals |
| Parties | HOWELL v. DUCOMMON METALS & SUPPLY CO. et al. Civ. 17570. |
Spray, Gould & Bowers, C. W. Bowers, all of Los Angeles, for appellant.
Parker, Stanbury, Reese & McGee, John Henry Peckham, Jr., all of Los Angeles, for respondents.
The present appeal is from a judgment in favor of defendant Ducommon entered by the trial court notwithstanding a verdict of $8,000.00 against said defendant, for personal injuries sustained by plaintiff. Plaintiff also appeals from a judgment entered on a verdict in favor of defendant Haskins who was an overhead crane operator for Ducommon.
Plaintiff was the driver of a truck owned by the Williams Transfer Co. and at the time of the accident had placed the truck in Bay 3 at the Ducommon loading dock. Heavy steel plates were being transferred from the Ducommon warehouse to the truck, and while so loading by means of the overhead crane operated by Haskins two pieces of steel weighing about 1,900 pounds fell upon the plaintiff.
The answer filed by the Ducommon company and defendant Haskins, denied any negligence, pleaded contributory negligence and unavoidable accident.
Respondents contend that appellant Howell although in the general employ of the Williams Transfer Company, was nevertheless in the 'special' employ of Ducommon and in its control and direction; that therefore appellant's only remedy was under the Workmen's Compensation Act, Labor Code, § 3201 et seq. In respect to this issue the record discloses substantial evidence to the effect that appellant was hired and paid by Williams, required to punch a time clock at the Williams plant, assigned to do trucking for the Ducommon company; that like other truck drivers, Howell was instructed truck drivers Ducommon's employees would direct the placing of the trucks and the loading operations. Williams maintained a dispatcher at the Ducommon plant whose duty it was to dispatch the trucks wherever Ducommon wanted materials hauled; this dispatcher had charge of all Williams drivers hauling materials out of the Ducommon plant.
Just previous to the accident Ducommon's loading foreman had directed appellant to move the Williams truck into Bay 3 underneath a particular crane, which was done. A Ducommon employee then placed two circular pieces of steel 103 inches in diameter within a so-called safety plate grip attached to the crane, which grip is said to hold the metal firmly so long as tension remains on the chain. The crane operator then moved the steel to the proper position above the truck. Howell, standing on the truck, put his hands on the steel to guide it in the customary manner. The crane operator then inquired 'if he (Howell) was ready to let it down and he nodded his head (meaning yes)'. Then, again quoting from the operator's testimony, . According to the operator, an edge of the steel was on the truck or was 'resting on something' when it fell on appellant; the operator did not actually see this but knew it by a 'feeling on the hoist lever'. The grip or 'grab' appeared to come loose before the steel was laid flat on the truck. The operator did not know what caused the fall and testified that nothing like this had happened before.
Appellant's testimony is fairly consistent with that of the crane operator as to what happened, and no more explanatory as to why it happened. As the material came down appellant kept 'motioning' the operator back, then (appellant presumed) the steel hit the bottom of the truck and 'That is when the accident happened'. Howell did not anticipate there was going to be an accident and there was not sufficient opportunity to move out of the way. Appellant had nothing to do with the choice of apparatus used and did not tell Haskins how to operate the crane. Ducommon's superintendent, Chester Cooper, testified that no other accident of this kind had occurred except one which was caused by grease being on the steel, a condition not shown by any evidence in the present case.
Appellant's case was predicated on the res ipsa loquitur doctrine, it being claimed that such doctrine was applicable since (1) the accident was of a kind which does not ordinarily occur; (2) that it was caused by an instrumentality under respondents' exclusive control; and (3) it was not due to any voluntary contribution on appellant's part. The trial court instructed the jury on this issue.
It is respondents'...
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Sukoff v. Lemkin
...to prevent a miscarriage of justice in those cases where the verdict rendered is without foundation." (Howell v. Ducommon Metals & Supply Co. (1950) 101 Cal.App.2d 163, 167, 225 P.2d 293.) "The scope of appellate review is to determine whether there is any substantial evidence, contradicted......
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...but to prevent a miscarriage of justice in those cases where the verdict rendered is without foundation." (Howell v. Ducommon Metals & Supply Co. (1950) 101 Cal.App.2d 163, 167.) Upon review of an order denying a motion for judgment notwithstanding the verdict, the appellate court determine......
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Clark v. Clark, A118811 (Cal. App. 6/29/2009)
...weigh the evidence, determine its credibility, and substitute a decision of the court for that of the jury." (Howell v. Ducommon Metals & Supply Co. (1950) 101 Cal.App.2d 163, 166.) Neither the trial court, nor this court, has the authority to grant JNOV on those grounds. Because there was ......