Jarvis v. Southern Pac. Transportation Co.

• Decision Date: 22 March 1983
• Citation: 142 Cal.App.3d 246,191 Cal.Rptr. 29
• Court: California Court of Appeals Court of Appeals
• Parties: Martin J. JARVIS, Plaintiff and Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant and Respondent. State Compensation Insurance Fund, Plaintiff-In-Intervention and Appellant. Civ. 51168. A0 14068.

Page 29

191 Cal.Rptr. 29

142 Cal.App.3d 246

Martin J. JARVIS, Plaintiff and Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant and Respondent State Compensation Insurance Fund, Plaintiff-In-Intervention and Appellant.

Civ. 51168.

A0 14068.

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

March 22, 1983.

Leo M. O'Connor, Sacramento, for plaintiff and appellant.

John J. Corrigan, San Francisco, for defendant and respondent.

Walter G. Watson, San Francisco, for real party in interest.

RACANELLI, Presiding Justice.

As a result of a serious permanent injury sustained in the course of his professional employment, appellant Martin Jarvis, an attorney, brought suit for damages against Southern Pacific Transportation Company (S.P.). The State Compensation Insurance Fund (Fund), compensation carrier for appellant's employer, appeared as plaintiff-in-intervention seeking reimbursement of workers' compensation benefits paid to Jarvis.

The jury returned special verdicts finding S.P. negligent, fixing damages in the amount of $550,000 and apportioning liability on the basis of 78 percent contributory negligence attributable to Jarvis and 22 percent attributable to S.P. The trial court entered a judgment awarding Jarvis the sum of $68,577 and nothing to intervenor. Both Jarvis and intervenor appeal. ¹

FACTS

We first narrate the factual record: Appellant Jarvis, a licensed attorney since 1947, is an employee and president of the law firm of Jarvis, Miller, Brodsky & Baskin, Inc., a professional corporation specializing in maritime and admiralty law and personal injury litigation.

In 1973, Jarvis was retained to represent Peter Chaplin in a personal injury suit against S.P. and Atchison, Topeka & Santa Fe Railroad Company (Santa Fe) for injuries sustained when Chaplin, a teamster employed by Alltrans Express, fell from a Santa Fe boxcar which had been positioned by S.P. in front of the Alltrans warehouse.

A material issue in the Chaplin lawsuit was whether the hand brake on the boxcar (No. 17627) was defective. Jarvis directed an interrogatory to Santa Fe seeking the location of boxcar No. 17627 for the purpose of investigation. Eventually, on December 10, 1974, Santa Fe's counsel informed Jarvis' office that the boxcar was in Barstow, California. Two days later, counsel telephoned Jarvis and told him the boxcar would not remain in Barstow but that he would be notified when the boxcar arrived in the northern California area.

At the time the Chaplin trial began on February 3, 1975, Jarvis had yet to inspect the boxcar which was then located--unknown to Jarvis--in S.P.'s San Francisco yard.

On the fifth day of trial, during direct examination of a S.P. witness, the presence of the boxcar in San Francisco was disclosed; the trial recessed for the weekend before cross-examination of the witness.

The following Sunday afternoon, Jarvis drove to S.P.'s Mission Bay railroad yard accompanied by Leo J. Corsello, a private investigator, and Lester Tarnapol, an engineering expert. Corsello and Tarnopol had gone to the yard earlier that day and inspected a Santa Fe boxcar equipped with a similar handbrake. The boxcar inspected was in fact No. 17627.

The yard was open and unfenced with public streets running through it. Jarvis observed neither any posted warnings, yard personnel, nor any signs of activity. Boxcar No. 17627 was standing alone on track 154.

After Tarnopol and Corsello had performed some tests on the handbrake, the three men left; however, they immediately returned to the stationary boxcar so that Tarnopol could perform one more test. The yard still appeared deserted. The three men had been seen by some railroad workers who thought that the Jarvis party were switchmen checking the brake on the boxcar.

At about 3:45 p.m., a S.P. switch engine crew had begun routine switching operations, which included switching a loaded Burlington Northern granite-filled open top car onto track 154 where No. 17627 was positioned. The railroad yard is gravitational, sloping downward gradually. A bullswitch located near 16th Street, approximately a quarter of a mile from No. 17627, controls entry onto the tracks including track 154.

The switch crew positioned the Burlington car and then pulled the connecting pin thus permitting the car to roll free down track 154; ² no whistle or horn was sounded. As the Burlington car rolled down track 154, Corsello was standing on the ladder of the boxcar and Tarnopol alongside; Jarvis apparently was standing outside of the tracks. The granite car collided with No. 17627 and propelled the boxcar down the track. The overhang from the boxcar struck Jarvis' shoulder and knocked him to the ground, his legs on the track. Jarvis rolled in an attempt to escape injury but unfortunately was unable to remove his left leg which was traumatically amputated by the moving cars.

The switching of the granite car was the ninth switching operation performed that afternoon. As the switch engine passed 16th Street, the gates went down and the warning bells sounded, yet the three men testified they heard no sounds: neither a whistle, a horn, engine noise or the squealing of the wheels on the tracks.

At the time of the accident, Jarvis was wearing a red zippered jacket; Corsello was wearing blue corduroy pants and a green jacket; Tarnopol was wearing overalls. The first accident reports requesting emergency aid described the victim as an injured "worker." A fireman who responded recalled that Jarvis stated he had fallen off the boxcar and slipped under the train as he tried to get up.

I

Jarvis' initial claim of instructional errors focuses attention on his status as a trespasser in the Mission Bay yards. In its benchmark decision abrogating common law classifications of status in determining the liability of a landowner, the Supreme Court recognized that "the plaintiff's status as a trespasser, licensee, or invitee may in the light of the facts giving rise to such status have some bearing on the question of liability...." (Rowland v. Christian (1968) 69 Cal.2d 108, 119, 70 Cal.Rptr. 97, 443 P.2d 561; accord Totten v. More Oakland Residential Housing, Inc. (1976) 63 Cal.App.3d 538, 544, 134 Cal.Rptr. 29.)

In Beard v. Atchison, Topeka & Santa Fe Ry. Co. (1970) 4 Cal.App.3d 129, 84 Cal.Rptr. 449 [14-year-old boy sustained double amputation while attempting to hop a freight train], the court likewise recognized that while the minor's status as a trespasser did not preclude all recovery, the fact of the trespass "furnishes some evidence that plaintiff's conduct was negligent." (4 Cal.App.3d at p. 140, 84 Cal.Rptr. 449.)

In the present case, we have already had occasion to consider evidence pertaining to Jarvis' status as a trespasser as relevant to the issue of fault. In granting mandamus relief in connection with an in limine evidentiary ruling, this court held that evidence of Jarvis' status (as a trespasser, licensee or invitee) "was directly related and material to the issue of foreseeability.... [T]he effect of [Jarvis'] failure to expressly request permission to enter for purposes of inspection or to institute formal discovery to achieve such purpose, was for the jury to determine." (Jarvis v. Superior Court, 1 Civ. No. 45975, unpublished opn. filed June 21, 1979.) The trial court quite properly treated that opinion as establishing the law of the case.

The trial court correctly instructed the jury pursuant to BAJI 8.00 (1977 Rev.) on the duty of care of an owner of premises and submitted its modified instruction defining a trespasser, licensee and business invitee together with the factors to be considered in determining whether Jarvis had been invited onto the property. Jarvis does not dispute the propriety of those instructions but contends the trial court should have also given his requested instruction that a trespasser may recover if the injury was foreseeable and avoidable. ³

First, we believe the trial court properly determined that the precise issue was adequately covered by the standard BAJI instruction 8.00 given to the jury. Accordingly, it was under no duty to give a requested instruction which was otherwise adequately and correctly covered. (Foster v. Gillette Co. (1979) 100 Cal.App.3d 569, 576, 161 Cal.Rptr. 134; Rangel v. Graybar Electric Co. (1977) 70 Cal.App.3d 943, 947, 139 Cal.Rptr. 191; Fuller v. State of California (1975) 51 Cal.App.3d 926, 944, 125 Cal.Rptr. 586.)

Moreover, we perceive no harm in the denial. The jury found in Jarvis' favor and awarded damages caused by S.P.'s negligence. It is thus apparent that the jury was not misled into believing recovery was precluded due to Jarvis' alleged status as a trespasser.

In a related argument, Jarvis contends that the trial court erred in failing to instruct that there was no evidence of contributory negligence as a matter of law. ⁴

It is axiomatic that the issue of contributory negligence must be presented to the jury whenever it is asserted as a defense and there is " 'some evidence of a substantial character' " to support it. (Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 548, 138 Cal.Rptr. 705, 564 P.2d 857; Scott v. Alpha Beta Co. (1980) 104 Cal.App.3d 305, 310-311, 163 Cal.Rptr. 544.)

Jarvis argues that other than his presence in the Mission Bay yard, there was no evidence of negligence on his part. He is mistaken. As discussed above, his status as a trespasser was relevant to the issue of contributory negligence. (Cf. Beard v. Atchison, Topeka & Santa Fe Ry. Co., supra, 4 Cal.App.3d 129, 139-140, 84 Cal.Rptr. 449, where the court held that the minor's contributory negligence in hopping aboard a train was a question of fact to be resolved upon consideration of "his age, intelligence, and familiarity with the dangers inherent in moving trains.") Jarvis, an experienced personal injury lawyer, admitted he was aware of the dangers in a railroad yard. He went to the yard dressed like a worker...