Klopfenstein v. Rentmaster Trailer Co.
| Decision Date | 20 March 1969 |
| Citation | 270 Cal.App.2d 811,76 Cal.Rptr. 126 |
| Parties | Elmer F. KLOPFENSTEIN, Plaintiff and Appellant, v. RENTMASTER TRAILER CO., Steve Lapshansky and Robert Meeker, Defendants and Respondents. Civ. 32988. |
| Court | California Court of Appeals Court of Appeals |
Harney, Ford & Schlottman, by Robert E. Ford, Los Angeles, for appellant.
Brill, Hunt, DeBuys & Burby and Henry E. Kappler, Los Angeles, for respondent Rentmaster Trailer Co.
Leslie B. Joseph, Long Beach, for respondent Steve Lapshansky.
Cushman & Grover, by Thomas Hunter Russell, Los Angeles, for respondent Robert Meeker.
On September 16, 1962, Elmer F. Klopfenstein, plaintiff and appellant, rented a trailer from defendant and respondent, Steve Lapshansky. Lapshansky operated a service station which he had purchased six days before from Robert Meeker. The trailer was attached to his auto by an employee of Lapshansky. Appellant made no inspection of the attachment. He signed the form rental receipt and drove off. Within one-half hour thereafter, driving north in the third lane on a three-lane divided highway of the Long Beach Freeway, the tailgate of the trailer fell off and came to rest between the second and third lane of the highway. Appellant stopped his car on the gravel shoulder of the freeway and walked south on the gravel shoulder until opposite the fallen tailgate approximately 18 feet away.
He stood on the shoulder until, except for one auto in lane one (fast) traffic had cleared. The auto in question was in his opinion, proceeding approximately 50 miles an hour 200 feet south of where he stood. He calculated he could safely retrieve the tailgate and jogged out and back toward the shoulder with the retrieved tailgate in approximately 10 to 12 seconds. Returning to the gravel shoulder, he heard noise, looked back and the auto which he had observed in lane one, struck him. At the time of the impact, he was on the gravel shoulder, about four feet off lane three holding the tailgate. He was knocked over into a position between lanes two and three and suffered fractures of hip, shoulder and hand. He was hospitalized approximately 30 days. Appellant brought this action for damages against the driver of the auto (Egger) and the driver's employer and in addition, Lapshansky, Robert Meeker, and Rentmaster, as a corporation and as a limited partnership and all of the partners of Rentmaster (Rentmaster).
Appellant settled with Egger and Egger's employer during the trial. The other defendants moved for and each was respectively granted a nonsuit.
The uncontradicted evidence shows that respondent Meeker had sold the service station to Lapshansky six days before. During the time Meeker owned the service station, Meeker had various agreements with Rentmaster pursuant to which Rentmaster provided the service station with trailers and rental forms to enable Meeker to rent the trailers to the public. When Meeker sold the service station to Lapshansky, he had promised as part of the deal, to arrange transfer of his lease covering trailers with Rentmaster. Rentmaster did not know of the sale from Meeker to Lapshansky and had not, at the time of the accident, transferred the lease. After Meeker sold the service station, Rentmaster continued to leave its trailer and trailer rental agreement forms at the service station and Lapshansky and his employees rented the trailers and used the forms.
No evidence presented by appellant showed that the particular trailer here involved was at the service station at the time Lapshansky purchased the station, or that Meeker had made any warranties as to it or any of the other trailers or at any time prior to its rental to appellant, Meeker knew of any defect in it. It is admitted Meeker did not own the service station at the time of the accident, and had had no contact with appellant, or was he in any way connected with the transaction between appellant and Lapshansky.
Appellant testified:
'If he (Egger, the driver of the oncoming car) would have stayed in the lane he was in, I would have all day to go out there and get it and get back.'
Robert E. Snyder, an expert called by appellant, testified in pertinent part:
This appeal is from the judgment of nonsuit in favor of Meeker, Lapshansky and Rentmaster.
Appellant's evidence affirmatively showed that the tailgate would not have fallen off if it had been locked at one side. It was the duty of Lapshansky and his employee to properly attach the trailer to appellant's car, and to make certain that the tailgate was properly locked so that it would neither open nor fall off. Although there is evidence it was not possible to lock the tailgate at both upper ends, because of a 'deformation or hump in the center of the cross-member on which the gate sat * * *', there is no proof of a defective manufacture and the affirmative testimony of appellant shows that if fastened in even one position at the top, the tailgate would not have fallen off.
On this state of the record the nonsuit was properly granted as to respondents Keeker and Rentmaster.
The nonsuit granted in favor of Lapshansky presents the question of whether Egger's negligence in running his automobile into appellant, was as a matter of law, the sole cause of the accident, thus eliminating any cause of action which appellant has against Lapshansky because of Lapshansky's negligence in failing to properly fasten the tailgate.
A judgment of nonsuit can be entered only if the evidence, viewed in the light most advantageous to the plaintiff,...
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