Jones v. Maynard

• Decision Date: 18 May 1956
• Citation: 297 P.2d 461,141 Cal.App.2d 643
• Court: California Court of Appeals Court of Appeals
• Parties: Elma B. JONES, Administratrix of the Estate of Sidney W. Jones, Deceased, Plaintiff, Appellant and Respondent, v. Jack Henry MAYNARD, Permanente Cement Company, a California Corporation, et al., Defendants, Respondents and Appellants. Civ. 5000.

Page 461

297 P.2d 461

141 Cal.App.2d 643

Elma B. JONES, Administratrix of the Estate of Sidney W. Jones, Deceased, Plaintiff, Appellant and Respondent, v. Jack Henry MAYNARD, Permanente Cement Company, a California Corporation, et al., Defendants, Respondents and Appellants.

Civ. 5000.

District Court of Appeal, Fourth District, California.

May 18, 1956.

Hearing Denied July 11, 1956.

Thelen, Marrin, Johnson & Bridges, Boyd, Taylor & Reynolds, Dubsick & Whalen, Fresno, Bronson, Bronson & McKinnon, San Francisco, for appellants Jack Henry Maynard and Permanente Cement Co.

C. Ray Robinson, San Francisco, Thompson & Thompson, Eckhart A. Thompson, Fresno, for appellant Jones.

GRIFFIN, Justice.

This is an action originally commenced by Sidney W. Jones, plaintiff and respondent (hereinafter referred to as plaintiff), against defendants and appellants Jack Henry Maynard, a truck driver of 33 years experience, and Permanente Cement Company (hereinafter referred to as the company), his employer, for injuries claimed as a result of being crushed by the wheels of defendants' tractor-trailer Diesel engine cement truck. A former trial by jury resulted in a verdict for plaintiff. The judge there presiding granted a new trial on the ground of insufficiency of the evidence. This action was justified on the conflicting evidence there produced.

After a second trial before another jury and judge a verdict was rendered in favor of defendants. The court granted plaintiff's motion for a new trial on three separate grounds: (1) Insufficiency of the evidence; (2) Irregularity in the proceedings; and (3) Errors in law. Defendants appeal from the order and plaintiff cross-appeals from the judgment under Rule 3(a) of the Rules on Appeal. Subsequent to the trial Sidney W. Jones died and Elma B. Jones was appointed administratrix of his estate, and substituted as plaintiff herein.

About 7:23 a. m. on January 25, 1952, defendant truck driver arrived in Fresno with defendant company's truck which weighed approximately 68,000 pounds loaded with sacks of cement on a flat bed. It was about 48 feet long and the load was about 3 1/2 feet high above the bed and covered with a canvas.

The truck had rear view mirrors 4 inches by 14 inches on each side of the cab. The Parrish Company's plant, to which the cement was being delivered, was fenced and located near the intersection of Maple Avenue and Thomas Street in Fresno. Thomas Street was about 100 feet wide, and an unimproved dirt public road running in an east-west direction passing by the company's buildings located on the south side of the readway. There were no sidewalks or curbs. Although the weather was then clear it had rained the night before and the street was quite soft, muddy and full of chuckholes. The property buildings consisted of a frame building and a separate cement storage building sitting back on the company's property. A gate was provided in the fence where the passageway enters into the company yard. Plaintiff Jones had been employed by the Parrish Company for two days before the accident. His duties were to assist other men in unloading cement at the cement storage house. He arrived at the office before 7 a. m. and then left if and was awaiting the arrival of defendants' truck. In a few minutes the truck arrived and it was stopped on Thomas Street opposite the company shop about 18 feet out from a telephone pole which was located about 16 feet north of the fence and shop. The testimony as to the exact position of the truck was in dispute. Maynard was awaiting the opening of the gate by an authorized dispatcher of the Parrish Company whose duty it was to open it. This was no part of plaintiff's duties. In the meantime, Maynard was untieing the ropes on the canvas covering the cement and Jones came out of the yard and watched this operation. According to Maynard (called as an adverse witness), plaintiff followed him around the truck like 'a puppy follows a child' and acted 'in a sort of a daze * * * strangely', looking underneath the truck and in the cab and not saying a word or touching anything. He testified he knew there was something wrong with plaintiff. It was no part of plaintiff's duty to assist in this operation. Other trucks and employees' cars were subsequently parked nearby and to the rear of defendants' truck. Maynard further testified that about this time he and plaintiff were about 15 feet (this distance is in dispute) to the rear of the cement truck when plaintiff started walking in a westerly direction toward one of the parked trucks to the rear, and that Maynard left to go around the north side of his truck to start it because the dispatcher had given him the signal that the gate was open; that Jones had disappeared from his sight when he got in the cab; that he started the motor and it took 10 to 20 seconds to 'build up' air in his Diesel engine, which causes considerable noise, and looked in both rear-view mirrors, saw nothing that would interfere with his operations, put the truck in the lowest of its 15 gears and started forward at about one-half mile per hour; that he continued to look in the mirror; that after the truck had traveled about 70 feet and had started to turn into the gate he heard someone holler 'Back up quick'; that he looked into his right rear-view mirror and Jones appeared to be holding onto his truck with his left hand underneath, his body lying 'along the wheels', his 'head, from his hips or shoulder up was in front of the front dual wheels of the right' front axle; and that when he stopped the truck and commenced to back up plaintiff let go. Plaintiff was found in the tracks of those wheels, badly crushed. His hat was found a few inches from these wheels. Apparently there were no other eyewitnesses to the actual cause of the accident.

Jackson, another truck driver who had parked his truck to the rear of defendants' truck, testified he saw Jones in the office (shop) and later saw Maynard untieing the ropes, and three or four men, including Jones, were standing between the shop and the cement truck; that he went into the office and as he was walking out of the shop, the next time he saw Jones the cement truck was moving and Jones was under the wheel of the semi-trailer; and that he hollered for Maynard to stop and back up.

Another truck driver, Eichelberger, who was in the shop, testified he did not see Jones but saw his hat in the position indicated, just as the truck started to move. Another driver, Ham, testified he parked his truck about eight feet to the south or to the rear of defendants' truck; that defendants' truck was about eight feet north of the pole; that he went to the office waiting for defendants' cement truck to pull out; that just as he was coming out he noticed Maynard getting into the cement truck; that he got in his tank truck and he saw Jones dragging under the right front wheel of defendants' truck and it appeared to him that Jones was trying to keep his body in a north-south angle 'to keep it up with the wheel' in a 'rolling type of motion'. He noticed drag marks on the mud but did not hear the motor of defendants' truck start up.

An officer testified as to conditions there existing shortly after the accident and stated that Maynard signed a written statement (in evidence). It recites:

'* * * I started to untie the tarp cover. The victim was at the scene then but not helping. He was wandering around, acting like he was in a daze. I finished untying, doubled my ropes up and went to see if the gate to the shed was open. I came back and got into my truck, I didn't see the victim at all at this time. I shifted into low gear and started forward, approx. 1/2 m.p.h. Somebody hollered and I put on my brakes and looked in my mirror and saw a person lying under the right front wheels on the Semi-trailer. Someone hollered 'Back up quick' so I did about 3 feet. I believe someone of the employees saw him fall but they would not tell me. I just don't know what happened.'

The witness Ham signed a similar statement and said Jones was standing approximately 15 feet south of the cement truck when he walked out to get into his truck, and the cement truck started to pull forward and later he saw Jones struggling 'to get from underneath the wheel * * *'; that he didn't 'see Jones from the time he was standing 15 feet from the truck until he was under the wheel'. Other witnesses added nothing respecting defendants' negligence and the claimed contributory negligence of plaintiff. Portions of this testimony, taken at the former trial, was allowed in evidence as impeaching their testimony. We perceive little, if any, material variance in the stories. Plaintiff endeavored to testify but it was apparent from his testimony that he did not remember any of the facts surrounding his injury.

Defendants' motion for a nonsuit was denied. It is their claim that under no reasonable or rational theory was it shown that they were negligent; and that it did not show how Jones got under the wheel or that any negligence of Maynard put him there. From the evidence the jury was quite justified in finding in favor of defendants, and had the trial court denied the motion for a new trial it might well have been sustained on appeal. Tuttle v. Crawford, 8 Cal.2d 126, 63 P.2d 1128; Stuart v. Harper, 133 Cal.App.2d 550, 284 P.2d 505; Tuderios v. Hertz Drivurself Stations, 70 Cal.App.2d 192, 160 P.2d 554; Rogers v. Interstate Transit Co., 212 Cal. 36, 297 P. 884; Speck v. Sarver, 20 Cal.2d 585, 128 P.2d 16. However, this is not the question before us. The trial court, apparently with some reluctance, granted a new trial believing that there was some substantial evidence upon which the jury could return a verdict in favor of plaintiff and that...